Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
February 17, 2015 Agenda
tru�Rltl �'� � k, Tuesday, February 17, 2015 City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com 1:00 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, February 17, 2015 at 1:00 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 February 17, 2015. 3. Work Session Reports A. ID 15 -141 Receive a report, hold a discussion and give staff direction regarding Fire and Emergency Medical Services for the Robson Ranch subdivision of Denton. Attachments: Exhibit 1 Presentation B. ID 15 -155 Receive a report, hold a discussion and give staff direction regarding a possible Tax Abatement Agreement with Peterbilt Motors Company. C. SI15 -0006 Receive a report, hold a discussion and give staff direction on an amendment to reorganize the Denton Development Code. Attachments: Exhibit 1 - Disposition Report Exhibit 2 - Revised Table of Contents Exhibit 3 - Summary Table of Review Procedures D. ID 15 -138 Receive a report, hold a discussion, and give staff direction regarding Smoking Ordinance No. 2012 -367. Attachments: Exhibit 1 2012 -367 Smoking Regulations Exhibit 2 Ordinance - Clean Version Exhibit 3 Smoking Ordinance Red -lined version Exhibit 4 Engage Denton. com Survey Results (Feb 2015) Exhibit 5 Smokina Ordinance Revisions Presentation E. SI15 -0004 Receive a report, hold a discussion and give staff direction regarding an ordinance to adopt the 2012 International Building Code (IBC), the 2012 International Residential Code (IRC), the 2012 International Plumbing Code (IPC), the 2012 International Mechanical Code (IMC), and the 2012 International Fuel Gas Code (IFGC) as amended by the City. City ofDenton Page I Printed on 211,312015 City Council Meeting Agenda February 17, 2015 Attachments: Exhibit 1 Bldg Insp 2012 Codes - Council Presentation Exhibit 2 2012 Code Adoption Ordinance 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 15 -093 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071 Discuss, deliberate, and receive further information regarding the purchase of certain real property interest located in the R. H. Hopkins Survey, Abstract No. 1694, City of Denton, Denton County, Texas, and generally located along the 1800 block of Colorado Boulevard and the 1500 block of Angelina Bend Drive. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Township II Park Property Acquisition Project [Greenbelt Tracts] & [File ID 15 -094 Richland Plantation Partners Inc.]) B. ID 15 -154 Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding granting economic development incentives to Peterbilt Motors Company with respect to expansion of a manufacturing facility. This discussion shall include commercial and financial information the City Council has received from Peterbilt Motors Company which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. [File ID 15 -115] C. ID 15 -010 Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087 Consult with and provide direction to City's attorneys regarding legal issues City ofDenton Page 2 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 associated with the use of hotel /motel occupancy tax funds for Convention Center projects, 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. Also hold a discussion regarding granting economic development incentives for Convention Center projects which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. D. ID 15 -068 Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding support, implementation and operation of its Energy Risk Management Policy that deals with bidding and pricing information for purchased power, generation and fuel, and Electric Reliability Council of Texas (ERCOT) bids, prices, offers and related services and strategies. Consultation with the City's attorneys regarding legal issues associated with the Energy Risk Management Policy where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any potential litigation. Discuss, deliberate, and provide staff with direction. E. ID 15 -143 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 the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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; current and proposed extension to, moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; 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 ordinance and pending litigation styled Jerry Patterson, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. D- 1- GN -14- 004628 currently pending in the 53rd District Court of Travis County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 09833 -431 currently pending in the 431st District Court of Denton County 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 ofDenton Page 3 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 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. 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 15 -111 B. ID 15 -118 World Rotary Day Beulah Harriss Day 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: A. ID 15 -127 Gerald DeMarsh regarding no trespassing at the Senior Center. 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 — Q). 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 — Q 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 15 -083 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $142,000 of in -kind services and resources for the Denton Arts and Jazz City ofDenton Page 4 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 Festival to be held in Quakertown Park on April 24 - 26, 2015; and providing an effective date. Attachments: Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ordinance B. ID 15 -094 Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute a Contract of Sale (herein so called), as attached thereto and made a part thereof as Exhibit "A ", by and between Richland Plantation Partners, Inc., a Delaware corporation as Owner (herein so called), and the City of Denton, Texas, a Home Ruled Municipal Corporation, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 1.'1 acre tract, more or less, known as "Greenbelt" in Block B, subdivision plat of Township II, Phase 2, recorded in Volume 11, Page 14, Plat Records Denton County, Texas, located generally along the south side of the formerly contemplated extension of San Gabriel Drive, in the City of Denton, Denton County, Texas and a .17 acre tract, more or less, situated in the R. H. Hopkins Survey, Abstract No. 1694, located in the City of Denton, Denton County, Texas, generally located adjacent to 1900 Spencer Rd., City of Denton, Denton County, Texas as more particularly described in the Contract of Sale, (the "Property Interests "), for the purchase price of Twenty One Thousand Eight Hundred Fifty One Dollars and No Cents ($21,851.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. (Township II Park Property Acquisition project: Greenbelt South- Tract 3 [Richland Plantation Partners, Inc.]) Attachments: Exhibit 1 Location Map Exhibit 2 Ordinance C. ID 15 -100 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $11,500 of in -kind services and resources for the Denton Cinco de Mayo Festival to be held in Quakertown Park on May 2, 2015; and providing an effective date. Attachments: Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ordinance D. ID 15 -101 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $18,000 of in -kind services and resources for the Denton Juneteenth Celebration to be held in Fred Moore Park on June 19 -20, 2015; and providing an effective date. Attachments: Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ordinance City ofDenton Page 5 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 E. ID 15 -102 Attachments: F. ID 15 -117 Attachments: G. ID 15 -119 Attachments: H. ID 15 -121 Attachments: L ID 15 -125 Attachments: J. ID 15 -126 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $15,500 of in -kind services and resources for the Denton Air Show to be held at the Denton Enterprise Airport on June 20, 2015; and providing an effective date. Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ordinance Consider a request for an exception to the Noise Ordinance for the purpose of the 35 Denton Music Festival. Live music will be played in the Williams Trade Square, located on the 200 block of E. Hickory St., Dan's Silverleaf patio, located at 103 Industrial St., and Harvest House patio, located at 331 E. Hickory St., on Saturday, March 14, and Sunday, March 15, from 12:00 noon to 12:00 midnight. An exception is specifically requested to increase sound levels from 70 to 75 decibels and for an extension for hours from 10 p.m. to midnight. Staff recommends approval. Exhibit 1 Sound Variance Request Exhibit 2 Secondary Sound Variance Request Consider adoption of an ordinance authorizing the City Manager to between the City of Denton and declaring an effective date. Exhibit 1 Ordinance Exhibit 2 Agreement Exhibit 3 County EMS Funding Formula of the City of Denton, Texas approving and execute an Interlocal Cooperation Agreement Denton County for Ambulance Services and Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the City Manager to execute an Interlocal Cooperation Agreement between the City of Denton and Denton County for Fire Protection Services; and declaring an effective date. Exhibit 1 Ordinance Exhibit 2 Agreement Exhibit 3 County Fire Funding Formula Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $17,500 of in -kind services for the Denton Blues Festival to be held at the Quakertown Park on September 19 -20, 2015; and providing an effective date. Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ordinance Consider adoption of an ordinance approving a City sponsorship in an amount not City ofDenton Page 6 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 to exceed $4,900 of in -kind services and resources for Komen North Texas Denton Race for the Cure to be held at C.H. Collins Athletic Complex on Long Road on Saturday, September 26, 2015; and providing an effective date. Attachments: Exhibit 1 2014 vs 2013 In -kind Costs Exhibit 2 Running Total of Requested Support Letter of Request Susan G Komen Exhibit 4 Ordinance K. ID 15 -130 Consider adoption of an ordinance authorizing the City Manager to execute a professional services agreement for engineering services associated with the City of Denton 2015 and 2016 Fiscal Year Wastewater Collection System Rehabilitation projects; providing for the expenditure of funds therefor; and providing an effective date (File 5756- awarded to Teague Nall and Perkins, Inc. in an amount not -to- exceed $286,730). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 Location Map Exhibit 2 PUB Minutes Exhibit 3 Ordinance Exhibit 4 Agreement L. ID 15 -131 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a Professional Services Agreement for Design and Engineering Services relating to the Mingo Road Widening and Improvements at Cooper Creek project; providing for the expenditure of funds therefor; and providing an effective date (File 5758- awarded to Graham Associates, Inc. in an amount not -to- exceed $315,386.00). Attachments: Exhibit 1 Ordinance Exhibit 2 Agreement M. ID 15 -132 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for landscape maintenance for select City of Denton roadway rights -of -way; and providing an effective date (RFP 5713- awarded to VMC Landscape Services in the three (3) year not -to- exceed amount of $375,000). Attachments: Exhibit 1 Evaluation Exhibit 2 Ordinance Exhibit 3 Contract N. ID 15 -133 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the Rental of Heavy Equipment for various City of Denton departments; providing for the expenditure of funds therefor; and providing an effective date (RFP 5639- Rental of Heavy Equipment awarded to the lowest responsible bidder meeting specification for each item, in the annual estimated amount of $1,250,000 for a three (3) year not -to- exceed amount of $3,750,000). City ofDenton Page 7 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 Attachments: Exhibit 1- Evaluation and Ranking sheet Exhibit 2- Ordinance Exhibit 3- Associated Supply Exhibit 3 -B &R Equipment Exhibit 3 -Bane Machinery Exhibit 3 -Blue Line Rental Exhibit 3- Closner Equipment Exhibit 3 -Hertz Exhbit 3 -Kirby Smith Exhibit 3- Landmark Equipment Contract Exhibit 3 -RB Everett Exhibit 3 -TKO Equipment Exhibit 3- United Rental O. ID 15 -137 Consider adoption of an ordinance ordering an election to be held in the City of Denton, Texas, on May 9, 2015, and if a runoff election is required, on June 13, 2015, for the purpose of electing Council Members to Districts 1, 2, 3, and 4 of the City Council of the City of Denton, Texas; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an open meetings clause; and providing an effective date. Attachments: Exhibit 1 Ordinance P. ID 15 -150 Consider approval of the minutes of January 5, 2015, January 6, 2015, and January 13, 20'15. Attachments: Exhibit 1 January 5. 2015 minutes Exhibit 2 January 6. 2015 minutes Exhibit 3 January 13. 2015 minutes Q. ID 15 -157 Consider adoption of an ordinance of the City Council of Denton, Texas authorizing the City Manager to execute "Project Utility Adjustment Agreements (Owner Managed)" for TXDOT - CDA- U- 35 -OM -IH 35E; and "Utility Adjustment Agreement Amendments (Owner Managed)" form TXDOT CDA- U- 35A -OM -IH 35E; facilitating and authorizing electric utility relocations for the Interstate Highway 35 project, in substantial conformity with the attached two numbered Texas Department of Transportation agreements; with the developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and The Lane Construction Company; and The Texas Department of Transportation; authorizing the expenditure of funds therefor; and providing an effective date. Attachments: Exhibit 1 - Ordinance Exhibit 2 - Agreement Exhibit 3 - Agreement Amendment City ofDenton Page 8 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 5. PUBLIC HEARINGS A. ADP14 -0009 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding an Alternative Environmentally Sensitive Area Plan to allow for residential development within an existing Environmentally Sensitive Area (ESA). The approximately 12.68 -acre ESA is located within a proposed 98 -acre single - family residential development (Beaver Creek), on the northwest corner of North Loop 288 and Stuart Road within a Neighborhood Residential 4 (NR -4) zoning district; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, a severability clause, and an effective date. (ADP14- 0009). The Planning and Zoning Commission recommends approval (7 -0). Attachments: Exhibit 1 Staff Analysis Exhibit 2 Location Map Exhibit 3 Zoning Map Exhibit 4 Future Land Use Map Exhibit 5 Project Narrative and Site Plan Exhibit 6 ESA Map Exhibit 7 Revised ESA Map Exhibit 8 Alternative ESA Plan Exhibit 9 Site Photos Exhibit 10 Notification Map and Responses Exhibit 11 Planning and Zoning Meeting Minutes Exhibit 12 Draft Ordinance B. ID 15 -135 Hold a public hearing and consider adoption of an ordinance granting approval of the abandonment for park purposes of a 1.6598 acre portion of North Lakes Park in accordance with Chapter 26 of the Texas Parks and Wildlife Code; and providing an effective date. (Exhibit 1) (Parks, Recreation and Beautification Board recommend approval with a vote of 5 -0) Attachments: Exhibit 1 - Chapter 26 Map Exhibit 2 - SSRG Group Letter Exhibit 3 - Ordinance re North Lakes Land Sale Exhibit 4 - Excerpt of Park Board Minutes & Vote - Feb 2 2015 Exhibit 5 - Proposed ordinance with Att A C. DCA14 -0009 Continue a public hearing and consider adoption of an ordinance amending C Subchapters 5, 7, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; amending Ordinance No. 2013 -248, relating to planning and development fees and road damage remediation fees relating to gas well drilling and production activities; adding new Subchapter 22A to the Denton Development Code, relating to Oil and Gas Pipelines, Definitions, Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009c). The Planning and Zoning Commission recommends denial (4 -3). A supermajority City ofDenton Page 9 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 vote by City Council is required to adopt a motion to approve this ordinance. Attachments: Exhibit 1 Table of Revised Ordinances Exhibit 2 Clean Ordinance and Redlined Draft of DDC Subchapter 22 Exhibit 3 Clean Ordinance Draft of DDC Subchapter 7.16 Exhibit 4 Clean Ordinance Draft of DDC Subchapter 16.7 Exhibit 5 Clean Ordinance Draft of DDC Subchapter 5 Exhibit 6 Clean Ordinance Draft of DDC Subchapter 22A Exhibit 7 Fee Ordinance Exhibit 8 Public Responses to CC and P &Z from Dec 2014 meeting Exhibit 9 Public Responses to Additional Questions from PZ and the Public Exhibit 10 Draft Minutes of the February 4, 2015 P &Z Meeting D. ID 15 -115 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as Peterbilt Motors Company Reinvestment Zone No. XII for commercial /industrial tax abatement; establishing the boundaries of such zone; making findings required in accordance with Chapters 311 and 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; providing for repeal; and providing an effective date. Attachments: Exhibit 1 Ordinance 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -116 Consider adoption of an ordinance authorizing the Mayor to execute a Tax Abatement Agreement with Peterbilt Motors Company setting forth all the required terms of the Tax Abatement Agreement in accordance with the terms of Chapter 312 of the Texas Tax Code; setting forth the various conditions precedent to Peterbilt Motors Company, receiving the Tax Abatement; providing for a severability clause; and providing an effective date. Attachments: Exhibit 1 - Ordinance with Agreement B. ID 15 -153 Consider nominations /appointments to the City's Boards and Commissions: Health & Building Standards Commission; Human Services Advisory Committee; Parks, Recreation & Beautification Board; and Traffic Safety Commission. Attachments: Exhibit 1 Nominations Sheet 7. CONCLUDING ITEMS City of Denton Page 10 Printed on 211,312015 City Council Meeting Agenda February 17, 2015 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 of Closed Meeting topics, above posted. 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 , 2015 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 of Denton Page 11 Printed on 211,312015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -141, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Fire & Emergency Medical Services CM /ACM: Jon Fortune Date: February 17, 2015 SUBJECT Receive a report, hold a discussion and give staff direction regarding Fire and Emergency Medical Services for the Robson Ranch subdivision of Denton. BACKGROUND As the City Council is aware, there is a long- standing community debate concerning Fire Protection and Emergency Medical Service (EMS) response in the Robson Ranch area of Denton, and the corresponding impact on fire insurance rates. In October of 2014, the Fire Department initiated a review of options to enhance service levels to the Robson Ranch area of our City. Our objective has been to develop a strategy that addresses fire protection and the associated impact on insurance rates, along with EMS response - a service of increasing concern to the Robson Ranch community. In January 2015, a group of Robson Ranch community members formed a committee reviewing the issue concurrently. The closest fire station, Denton Fire Station 7, is located 5.6 miles from the entrance to the community. Station 7 is equipped with an Engine company, staffed with firefighter /paramedics. The closest Medic unit responds from Fire Station 3 which is located approximately 9 miles away. The Insurance Services Office (ISO) evaluates cities throughout Texas with a corresponding impact on commercial and residential insurance rates. The rating for the City of Denton within our core is 3; the rating in those areas of our City located further than 5 miles from a fire station is given the lowest recommended rating of 10. The City has an Automatic Aid agreement with the Argyle Emergency Service District (ESD) and shares an effective partnership in the southwestern region of Denton County. The Fire Department initiated a series of meetings with representatives of the Argyle ESD, serving the Town of Northlake, just to the south of Robson Ranch road. As a result of residential development in this area, the Argyle ESD proposes to build a station approximately one mile south of the Robson Ranch main entrance in the Harvest residential development. This proposed station would house an Engine company, staffed full time with a minimum of three personnel. A minimum of two of the three will be certified paramedics. From this location, it would be possible to deliver an enhanced first arriving unit response time to the Denton citizens residing in this area. In addition, the Automatic Aid Agreement with the Argyle ESD, responding from this location, could result in a reduction in the ISO rating for the Robson Ranch area of Denton. City of Denton Page 1 of 3 Printed on 2/12/2015 File #: ID 15 -141, Version: 1 Potential Partnership: While the Argyle ESD has successfully secured property for the station, their construction schedule depends on a tax revenue level that corresponds to significant build -out, which could be ten years or more. We have entered into discussions with Argyle ESD concerning a financial participation from the City of Denton that would permit an expedited construction date that could benefit both the ESD & the City of Denton. The intent of an agreement would be: • To provide first response to the Robson community sooner through a contract with the District. The ESD would own and operate the station, and the City of Denton would make annual contributions toward a percentage of the operating costs. • To create a formula in which the percentage of the City of Denton's contribution diminishes over time, corresponding with increased revenues from the ESD taxing authority. • To provide an exit clause at a defined period to respond to changing development needs and opportunities in the southwest corridor of IH 35. • To utilize the Argyle station location in a future petition for an ISO rating revision. Potential Service Timeline: Action Item Target Completion Deed and Title of proposed station site conveyed to Argyle ESD April 2015 Architectural firm contracted by the Argyle ESD September 2015 Design completion March 2016 Request for construction bids August 2016 Secure funding November 2016 Bids awarded December 2017 Construction commenced May 2017 Opening and staffing October 2018 RECOMMENDATION The Fire Department proposes a strategy for City Council consideration designed to accomplish the following service enhancement sequence: • Enter into an agreement to participate in an Argyle ESD Fire Station and Engine Company in 2015 with City of Denton Page 2 of 3 Printed on 2/12/2015 File #: ID 15 -141, Version: 1 an estimated implementation of fall 2018. • Initiate an aggressive four year work plan in the Denton Fire Department to adjust procedures, standardize processes and make appropriate investments designed to prepare the City to petition for a comprehensive ISO revision in 2019. • Propose an additional City of Denton Medic Unit at Station 7 in the FY 2015 -16 budget process. • Reinvigorate strategic relationships with key Denton County mutual and automatic aid partners. • Participate appropriately in the City's Cole Ranch and Hills of Denton development process. The City Manager's Office and the Fire Department are continuing to meet with the Argyle ESD. In addition, we have met with citizen representatives of the Robson community and provided response data based on their requests. Our intent today is to respond to questions that may arise from this presentation and to seek direction from the Council with regard to our proposed strategy. EXHIBITS Exhibit l: Presentation Respectfully submitted: Robin Paulsgrove Fire Chief, 349 -8830 Prepared by: Allison Carlwicz Administrative Manager, 349 -8860 City of Denton Page 3 of 3 Printed on 2/12/2015 C..) II b-C c;j (1:11) Ipfw 0 V) iww a) V) V) a) r-114 0) rte.) iw NI/ 7:: 0 0 U U Ln CU 7--1 0 Oki I# o-11 T 4� 4� c6 m CAA 4) Ln k" �T �J c O V E 0- a� c6 �U O c6 4� vo� O V Cv O VA& w N O 0- cn 4� Ln 5; w CAA O; c� V Ln ,O V J O re a--+ O L- cu U O, c� U 4— O Cv U a O U t U fa OC r% E IJR iMmft% L _ 0 V) E • ~ V 0 ' CAA � � m W •0 •0 .� 4-J 4-J V) V) - City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -155, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George Campbell Date: February 17, 2015 SUBJECT Receive a report, hold a discussion and give staff direction regarding a possible Tax Abatement Agreement with Peterbilt Motors Company. BACKGROUND Peterbilt, a division of PACCAR, opened the Denton Plant in 1980 with 83 employees and has sustained growth to employ over 2,700 in Denton in 2014. The Peterbilt Division Office was relocated to Denton from California in 1993, and in 2000, PACCAR Financial relocated their Las Colinas operations to Denton. The Denton plant has expanded its facility twice since 1980 and has continued to upgrade machinery and equipment to remain competitive and to provide the highest quality product to the consumer. These upgrades allowed Peterbilt to consolidate all of its heavy duty truck production in Denton, Texas. Peterbilt is the largest private employer in Denton with a salary /benefit package of over $200 million annually. Peterbilt's growth in 2014 has resulted in a 20% increase in employment and a 32% increase in production levels. These increases have also been the driving force behind similar growth of other businesses in Denton that support Peterbilt: • Elite Manufacturing • Quality Industries • NIC Global • Custom Vehicle Solutions (Rush Enterprises) • ProBilt Services (Custom Truck Upfit) • Active Transportation USA In addition to the growth of these existing businesses, the following companies opened new locations in Denton in 2014 to support the Peterbilt plant. • Commercial Vehicle Group (CSV) (1st Quarter 2015) • ConMet • Larson Group (Peterbilt Dealer) • CEVA Logistics (December 2014) PACCAR and Peterbilt continue to strongly encourage their supply base to open locations in Denton to support City of Denton Page 1 of 3 Printed on 2/12/2015 File M ID 15 -155, Version: 1 their truck operations. PACCAR'S continued commitment to growth in Denton is shown through the investment of $75 M in capital improvements the previous six years and the purchase of an additional 140 acres of property adjacent to the current 100 acre development. PACCAR has approved a project for an expansion, which will include a 17,500 square foot extension increasing receiving dock doors by 17, an increase of 56 %. This improves material flow from trucks into the expanded metering center supporting timely delivery of material to assembly lines. This project also includes a storage system for painted parts, cabs, hoods and sleepers to help balance the product flow from paint to cab trim. This project is scheduled for completion in mid -year of 2016. The tax abatement request before the Council represents an eight -year abatement at 70% each year for a total estimated incentive of $822,736. ESTIMATED SCHEDULE OF PROJECT If approved, the Peterbilt expansion project is scheduled to be completed in mid -year of 2016. PRIOR ACTION/REVIEW At the December 16, 2014 meeting, the Economic Development Partnership (EDP) board reviewed the request and recommended (8 -0) a tax abatement incentive of 70% for eight years. City Council received a briefing on the Peterbilt project at the February 3, 2015 (Closed Session) meeting. FISCAL INFORMATION Considering the project improvements that are eligible for tax abatement under our existing policy, the total estimated eligible annual tax revenue is $146,917. The EDP's recommendation of a tax abatement in the amount of 70% for eight years was based on their base qualifications ($25 million investment) plus additional factors for consideration, including: environmental/green building practices; community support and involvement; local preference for contractors and subcontractors; business park location; relationships with local universities; expansion of commerce and primary employment; attraction of major investment and the expansion of an existing facility. If valuations result as proposed, Peterbilt would receive a total incentive in the amount of $822,735. During the eight -year tax abatement, the City would receive 30% of property tax revenues on the building /improvements and equipment, resulting in new revenues of approximately $352,601. Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department Respectfully submitted: City of Denton Page 2 of 3 Printed on 2/12/2015 File M ID 15 -155, Version: 1 Aimee Bissett, Director Economic Development Department City of Denton Page 3 of 3 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: S115 -0006, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: John Cabrales Date: February 17, 2015 SUBJECT Receive a report, hold a discussion and give staff direction on an amendment to reorganize the Denton Development Code. BACKGROUND With the completion of the Denton Plan 2030, staff is prepared to update Council on proposed amendments that were initiated to focus on the Denton Development Code (DDC) and that are geared towards three central themes: (1) Create a More User - Friendly Code; (2) Streamline the Development Review Procedures; and (3) Establish Tailored Standards for Infill and Redevelopment Projects. As such, this item is the first in a series of proposed amendments that are recommended by Clarion and Associates (Clarion) to address the noted themes. The themes are a result of an assessment of the current Denton Development Code regulations and the feedback received from interviews with the development community and the public. The remaining presentation will address development review procedures and amendments for infill and redevelopment. This first discussion is Clarion's proposed amendments to: Create a More User - Friendly Code. A finding in Clarion's assessment of the Denton Development Code was the difficulty by the user to locate all regulations pertinent to a specific use and development (i.e., zoning and site development requirements), the process whereby a rezoning, specific use permit, or subdivision plat is approved, and the approving authority (i.e., Planning and Zoning Commission, City Council, Board of Adjustment). This inability to effectively locate information invariably causes the user to contact the City which creates an inefficient process (Exhibit 1). As a result, Clarion has proposed substantial amendments to the organizational structure of the DDC. Although the proposed reorganization is internal to the DDC, the amendments do not affect the location of the DDC as part of Chapter 35 of the Code of Ordinances. Currently, the DDC is organized in a manner that is not conducive to all users, only the most seasoned developers know where to find information necessary for a development. This is due in part to their previous City of Denton Page 1 of 3 Printed on 2/12/2015 File #: S115 -0006, Version: 1 experience working in the City and /or their knowledge of what is required as part of a development. For customers who are not as familiar, the present organization of the DDC can appear daunting. For example, if a first time user of the DDC is interested in developing a commercial property they would have to review a minimum of 7 subchapters and potentially two additional subchapters if the site is unplatted and a rezoning is required. The subchapters would include: 5 - Zoning Districts and Limitations 19 - Drainage 13 - Site Design Standards 20 - Transportation 14 - Parking 21 - Water and Wastewater Standards 15 - Signs and Advertising Under the proposed amendments the same proposal is reduced to 5 subchapters and potentially two additional subchapters if platting and a rezoning is required. The difference in the two scenarios is not simply combining subchapters; it is the placement of subchapters together that intuitively should be combined. For example, the current organization of the DDC separates water and waste water from drainage. Under the proposed revisions, these sections are combined to improve the user experience and gather all the pertinent information related to these engineering reviews under a single heading (Exhibit 2). Additionally, per the recommendation, this draft presents a new set of common review procedures for development applications. This section consolidates the review steps common to the various application types to ensure that the basic procedural steps and requirements are consistently applied. This structure is intended to help users better understand the City's basic development review procedures, avoid duplication of procedural provisions, and eliminate the need to amend multiple parts of the DDC if a common procedural provision is changed. For each individual review procedure in subsequent sections, a summary flowchart is included that indicates which of the common review procedures apply to that particular application. Additional information and modifications are then noted. These flowcharts are intended to quickly show the procedural steps necessary for any application approval. The current DDC lumps most of the procedures into five general categories: • Denton Plan Amendment: requiring action by the City Council after recommendation from the Planning and Zoning Commission; • Zoning Amendment: requiring action by the City Council after recommendation from the Planning and Zoning Commission; • Planning and Zoning Commission: requiring action by the Planning and Zoning Commission; • Board of Adjustment: requiring action by the Board of Adjustment; and • Staff Review: requiring action by City Staff. This revised Subchapter 2 proposes a new organization by breaking apart those general categories into individual development procedures (Exhibit 3). For example, the specific use permit is now treated as an individual procedure, rather than as a type of zoning amendment procedure. Each procedure indicates the applicable common review steps, plus any application - specific approval criteria and additional requirements. City of Denton Page 2 of 3 Printed on 2/12/2015 File #: S115 -0006, Version: Enhanced Approval Criteria The new organization results in tailored approval criteria for each application type (as opposed to the current DDC, which broadly applies general criteria to multiple types of applications). For example, under the current 35.3.4, the general zoning amendment criteria apply to consideration of specific use permit applications, though only two of the four criteria actually apply to specific use permits. In contrast, the new draft proposes criteria tailored just for specific use permits. This draft includes suggested new approval criteria for some application types. In some cases the criteria are carried forward from the existing DDC, but in many cases Clarion has slightly revised or introduced entirely new criteria. Of the new criteria, many of them are based on other jurisdictions where Clarion has drafted codes in the past, and then tailored them for Denton. New Site Plan Review Procedure Clarion has also introduced a new procedure in accordance with the Assessment Report and discussions with staff. The majority of the thresholds for site plan review were developed from the current expansion applicability table from the current 35.13.3. It is proposed that an administrative review process, based largely on the current "staff review procedure" section of the DDC be adopted. OPTIONS 1. Recommend the proposed amendments move forward as presented. 2. Recommend further amendments to the presented recommendations. 3. Take no action RECOMMENDATION Staff recommends that Council direct staff to proceed with the reorganization of the Denton Development Code as proposed. F,XHIRITS 1. Denton Development Code Reorganization and Reformat Disposition Report 2. Denton Development Code Reorganized Table of Contents 3. Denton Development Summary Table of Review Procedures Prepared by and respectfully submitted: Brian Lockley, AICP, CPM Planning and Development Director City of Denton Page 3 of 3 Printed on 2/12/2015 Exhibit 1 DENTON DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments Subchapter i - Preamble, purpose, application and enforcement Subchapter i - General Provisions Subchapter io - Definitions 35.1.1 Preamble 1.1 35.1.2 Pur ose 1.2 35.1.3 Short Chapter 1.3 35.1.4 Rules of Construction 10.1 Moved to Definitions Subchapter 1o. 35.1.5 Application of This Chapter 1.4 35.1.6 Inconsistent Provisions 1.5 35.1.7 Conflict with Private Restrictions 1.6 35.1.8 Severability 1.7 35.1.9 Effective Date 1.8 35•i.io Enforcement and Penalty 1.9 Subchapter z — Official maps Subchapter 3 — Zoning Districts, 3.1 — Official Maps 35.2.1 Compliance Required 3.1.1 35.2.2 Classification of Districts 3.1.2 35.2.3 Official Zoning Map 3.1.3 35.2.4 District Boundaries 3.1.4 35.2.5 Digital Mapping 3.1.5 35.2.6 Changes to the Zoning Map 3.1.6 Subchapter 3 - Procedures Subchapter z — Administration, 2.1 — Procedures 35.3.1 Purpose. 2.1.8 35.3.2 Procedures and Application Requirements. 2.1.9; 2.3 (application requirements struck from 2.1.9) Application and approval requirements from 35.2.3.B. were relocated to common review procedures, Sections 2.3.3 and 2.3.4• 35.3.3 Denton Plan Amendment Procedure. 2.4.1; 2.3.6 Notice procedures 35.3.3•C.4.A copied into common review procedures 2.3.6. 35.3.4 Zoning Amendment Procedure. 2.4.2; 2.3.6 Notice procedures 35.3.4•C.4.A copied into common review procedures 2.3.6. 35.3.5 Planning and Zoning Commission Procedure. 2.5.2 35.3.6 Board of Adjustment Procedure. 2.7.1 35.3.7 Staff Review Procedure. 2.5.1 35.3.8 Vested Rights 2.7.4 35.3.9 Religious Freedom Procedures. 2.7.5 35.3.10 Watershed Permit Relief Provisions. 2.7.2 35.3.11 Tree Preservation Relief Provisions. 2.7.3 Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•3.12 Exaction Proportionality 2.S•3 determination and appeal procedure. 3S•3.13Development Criteria Manual 2.4.3 Procedure Subchapter 4 - Boards, Subchapter z - Administration, 2.9 - Boards, Commissions, and commissions, and committees Committees 3S•4.1 Planning and Zoning 2.9.1 Commission. 3S•4.2 Board of Adjustment. 2.9.2 3S•4.3 Historic Landmark 2.9.3 Commission. 3S•4.4 Development Review 2.9.4 Committee. Subchapter 5 - Zoning districts Subchapter 3 - Zoning Districts, 3.2 - Base Zoning Districts; and limitations Subchapter 4 - Use Regulations, 4.1 and 4.2 - Table of Permitted Uses and Use - specific Standards; Subchapter 5 - Dimensional Requirements 3S•S•i Rural Districts 3.2.1; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•2 Neighborhood Residential 3.2.2; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•3 Downtown University Core. 3.2.3; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•4 Community Mixed Use 3.2.4; Uses from each district were consolidated Centers. Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•S•S Regional Mixed Use Centers 3.2.5; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•6 Employment Centers 3.2.6; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•7 Industrial Centers 3.2.7; Uses from each district were consolidated Permitted Uses and General into a permitted use table in Subchapter 4, Regulations included in tabular Section 4.1 —Table of Permitted Uses. format in Subchapters 4 and S. Dimensional standards are consolidated into summary tables in Subchapter S — Dimensional Requirements. 3S•S•8 Limitations Subchapter 4 —Use Regulations, Limitations were converted from "L" Section 4.2—Use-specific references to use - specific standards in Standards; Subchapter S — Subchapter 4, Section 4.2. Limitations Dimensional Requirements; and L(2) and L(33) were converted to Subchapter 6 — Development exceptions to dimensional requirements Standards, located in Section S•4• 3S•S•9 Additional Mixed Use 4.2.1.E Restrictions: Subchapter 6 — Specific uses Subchapter 2 — Administration, Section 2.5.4, Specific Use Permits 3S•6.1 General. I 2.5.4.A 3S•6.2 Procedure. 2.S•4•13 3S•6.3 Plan Requirements. 2.5.4.0 3S•6.4 Approval Criteria. 2.5.4.D 3S•6.S Conditions. 2.5.4.E 3S•6.6 Revocation; Abandonment. 2.5.4.F Subchapter 7 - Special purpose Subchapter 3 - Zoning Districts, 3.3 - Special Purpose and Overlay and overlay districts Districts Subchapter 2 - Administration, Section 2.8 - Historic Property Applications 3S•7.1 Purpose. 3.3.1 3S•7.2 General Standards. 3.3.2 3S•7.3 Creation of Special Purpose 3.3.3 and Overlay Districts. 3S•7.4 Denton Municipal Airport 3.3.4 Overlay District Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•7•S Fry Street Overlay District 3.3•S 3S•7.6 Historic Landmark 3.3.10;2.8.1; 2.8.3 Certificate of Appropriateness Review Preservation and Historic Districts Procedures from 35.7.6.8. relocated to Generally Historic Property Applications, section 2.8.1. Designation of Landmarks procedures from 35.7.6.4 through 35.7.6.7 were relocated to Historic Property Applications, section 2.8.3. 3S•7.7 Historic Conservation District 3.3.11;2.8.2 Procedures for establishing an historic conservation district in 3S•7.7.3 through 3S•7.7•S were relocated to Historic Property Applications, section 2.8.2. 3S•7.8 Historic District 3.3.12 3S•7.9 Oak - Hickory Historic District 3.3.13 3S•7•io Bell Avenue Historic 3.3.14 Conservation District 3S•7.11 Unicorn Lake Overlay District 3.3.9 3S•7.12 Master Planned Community 3.3.7 (MPC) District 3S•7.13 West Oak Area Historic 3.3.15 District 3S•7.14 Infill Special Purpose District 3.3.6 3S•7.15 Rayzor Ranch Overlay 3.3.8 District Subchapter 8 - Group homes Subchapter 4 - Use Regulations, 4.2 - Use - specific Standards, Section 4.z.11Y 3S•8.i Purpose. 4.2.1.F.1 3S•8.2 Use and Operation. 4.2.1.F.2 3S•8.3 Qualification. 4.2.1.F.3 3S•8.4 Specific Use Permits. 4.2.1.F.4 3S•8•S Licenses. 4.2.1.F.S 3S•8.6 Location of Assisted Living 4.2.1.F.6 Facility, Group Home for Handicapped Persons or Institution. 3S.8.7 Inspections. 4.2.1.F.7 3S•8.8 Notices, Hearings and Orders. 4.2.1.F.8 3S•8.9 Compliance Required. 4.2.1.F.9 Subchapter 9 - Manufactured Subchapter 4 - Use Regulations, 4.2 - Use - specific Standards, Section homes 4.2.1.G Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION DISPOSITION REP.R Current Chapter Proposed Location AND REFORMAT Comments 3S•9•i Definitions. 10.4.1 Definitions throughout the current DDC are consolidated in Subchapter 10 — Definitions. 3S•9.2 General. 4.2.1.G.1 3S.9.3 Inspections. 4.2.1.G.2 3S•9.4 Permit 4.2.1.G.3 3S•9•S License 4.2.1.G.4 3S•9.6 Technical Standards. 4.2.1.G.S 3S•9.7 Fire Safety Standards. 4.2.1.G.6 Subchapter io - Sexually oriented businesses Subchapter 4 - Use Regulations, 4.2 - Use - specific Standards, Section 4.2.21 3S•10.1 Purpose and Intent. 4.2.2.L.1 3S•10.2 Location of Sexually Oriented Businesses. 4.2.21.2 3S•10.3 Additional Regulations for Escort Agencies. 4.2.21.3 3S•10.4 Additional Regulations for Nude Model Studios. 4.2.21.4 3S•io.S Additional Regulations for Adult Theaters and Adult Motion Picture Theaters. 4.2.2.L.S 3S•io.6 Additional Regulations for Adult Motels. 4.2.21.6 3S•10.7 Regulations Pertaining to Exhibition of Sexually Explicit Films or Videos. 4.2.21.7 3S•io.8 Defenses to Enforcement. 4.2.21.8 Subchapter ii - Nonconforming uses Subchapter 8 - Nonconformities 3S•11.1 Purpose. 8.1 3S•11.2 Types of Nonconformity. 8.2 3S•11.3 Special Exceptions. 8.3 3S•11.4 Exemptions. 8.4 3S•ii.S Nonconforming Land Use Standards. 8.S 3S•ii.6 Nonconforming Structures. 8.6 3S•11.7 Amortization of Nonconforming Land Uses and Structures 8.7 3S•ii.8 Illegal Uses 8.8 Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments Subchapter 12 - General Subchapter 4 - Use Regulations, 4.2 - Use - specific Standards regulations Subchapter 5 - Dimensional Requirements; Subchapter 6 - Development Standards, 6.1 - Site Design Standards, and 6.4 - Land Disturbing Activities; 3S•12.1 Purpose. S.1 3S•12.2 Yard Measurements. S.2 3S•12.3 Utilities. 4.2.S.A These were moved to use - specific standards. 3S•12.4 Accessory Buildings and S•S Structures. 3S•12.S Minimum Floor Area S.6 Requirements. 3S•12.6 Maximum Persons 5.7 Occupying a Dwelling. 3S•12.7 Outside Storage. 4.2.6.13 These were moved to use - specific standards. 3S•12.8 Wireless 4.2.S.B These were moved to use - specific Telecommunications Facilities. standards. 3S•12.9 Temporary Uses. 4.2.7 These were moved to use - specific standards. 3S•12.io Home Occupations 4.2.6.0 These were moved to use - specific standards. 3S•12.11 Industrial Performance 6.8.9 Moved from general regulations to site Standards design requirements. 3S•12.12 Salvage Yards and Industrial 4.2.3.K These were moved to use - specific Operations standards. 3S•12.13 Commercial 6.2.7 Excavation /Removal of Earth Products Subchapter 13 - Site design Subchapter 6 - Development Standards, 6.1 - General Provisions, 6.6 - standards Transportation Standards, 6.7 - Landscaping and Buffers, and 6.8 - Site Design Requirements. 3S•13.1 Purpose and Intent. 6.1.1 3S•13.2 Application. 6.1.2 3S•13.3 Procedure / Plans Required 6.1.3 3S•13.4 Criteria for Approval. 6.1.4 3S•13•S Alternative Development 6.1.S Plan 3S•13.6 Left Blank For Future Use. removed 3S•13.7 Tree Preservation and 6.7.1 Landscape Requirements. 3S•13.8 Buffer Requirement. 6.7.2 Denton Development Code -Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•13.9 Perimeter Fences and 6.7.3 Screening Requirements. 3S•13.io Access, Parking and 6.6.6 Circulation Requirements. 3S•13.ii Drive - through Use 6.6.7 Should these be moved to Subchapter 4 Requirements. Use - specific standards? 3S•13.12 Light and Glare 6.8.8 Performance Requirements. 3S•13.13 Site Development 6.8 Site Design Requirements This section was renamed site design Requirements. requirements and adds light and glare performance requirements and industrial performance standards, previously 3S•13.12 and 35.12.11, respectively. Subchapter 14 - Parking Subchapter 6 - Development Standards, 6.9 - Parking Standards standards 3S•14.1 Purpose. 6.9.1 3S•14.2 Generally. 6.9.2 3S•14.3 Application. 6.9.3 3S•14.4 Spaces Required. 6.9.4 3S•14.4 Athrough D are incorporated into a table. Required parking spaces will eventually be reflected on the permitted use table in Subchapter 4. Every permitted use in that table should eventually have an associated re uirement for parking spaces. 3S•14•S Credit for On- street Parking 6.9.7 3S•14.6 Parking Accessibility 6.9.8 Standards. 3S•14.7 Limitations, Location, Use of 6.9.9 Facilities. 3S•14.8 Design Requirements. 6.9.10 3S•14.9 Development and 6.9.11 Maintenance. 3S•14.io Bicycle Parking. 6.9.12 Subchapter 15 - Signs and Subchapter 7 - Signs and Advertising Devices advertising devices 3SAS.1 Purpose and Intent. 7.1 3S•1S.2 Definitions. Subchapter 10 All definitions moved to Subchapter 1o. 3S•1S•3 Exemptions. 7.2 3S•1S•4 Certain Prohibited Signs. 7.3 3S•1S•S Administration and 7.4 Enforcement. Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION DISPOSITION REP.R Current Chapter Proposed Location AND REFORMAT Comments 3S•iS.6 Appeal, Variances, and Special Exceptions. 7.S 3S•1S•7 Historical Landmark Signs. 7.6 3S•iS.8 Licenses. 7.7 3S•1S•9 Permits. 7.8 3S•iS.io Nonconforming Signs. 7.9 Should these be moved to Subchapter 8, Nonconformities? 3S•iS.ii Removal of Unlawful Signs. 7.10 3S•1S.12 Technical Requirements. 7.11 3S•1S.13 Portable Signs. 7.12 3S•1S.14 Regulation of Signs by Zoning Districts. 7.13 3S•iS.iS Attached Signs. 7.14 3S•iS.i6 Temporary Signs. 7.1S 3S•1S.17 Illustrations. 7.16 3S•iS.i8 Special Sign Districts. 7.17 Subchapter 16 - Subdivisions Subchapter z - Administration, 2.6 Subdivision Approvals; Subchapter 9 - Subdivision Regulations 3S•i6.1 Authority. 9.1 3S•i6.2. Purpose. 9.2 3S•i6.3 Jurisdiction. 9.3 3S•i6.4 Application. 9.4; 2.6.2 Expiration of Dormant Projects (35.16.4.B) was moved to 2.6.2. 3S•i6.S Compliance and Enforcement. 2.6.3 3S•i6.6 Approval of Plat Required. 2.6.4 3S•i6.7 Lots, Access and Common Areas. 9.S 3S•i6.8 Application and Fees 2.6.S 3S•i6.9 Pre - application Conference. 2.6.6 3S•i6.10 General Development Plan. 2.6.7 3S•i6.11 Preliminary Plats. 2.6.8 3S•i6.12 Final Plats. 2.6.9 3S•i6.13 Re (at. 2.6.10 3S•i6.14 Amending Plat. 2.6.11 3S•i6.1S Minor Plat. 2.6.12 3S•i6.16 Vacating Plat. 2.6.13 3S•i6.17 Conveyance Plat. 2.6.14 3S•i6.18 Development Plats 2.6.15 Denton Development Code -Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•i6.19 Gas Well Development 2.6.16 Plats. 3S•i6.2o Construction. 9.6 3S•i6.21 Gated Community 9.7 Requirements. Subchapter 17 - Subchapter 6 - Development Standards, 6.5 - Environmentally Environmentally sensitive areas Sensitive Areas 3S•17.1 Purpose. 6.5.1 3S•17.2 Application. 6.5.2 3S•17.3 Environmentally Sensitive 6.S•3 Areas Review. 3S•17.4 Environmentally Sensitive 6.S•4 Area Classifications. 3S•17•S Official Maps. 6.S•S 3S•17.6 Developed Floodplain 6.S.6 Development Standards. 3S•17.7 Undeveloped Floodplain 6.5.7 Development Standards. 3S•17.8 Riparian Buffer and Water 6.S.8 Related Habitat Development Standards. 3S•17.9 Upland Habitat Development 6.5.9 Standards. 3S•17.io General Design and 6.S.10 Improvement Standards. 3S•17.11 Clustering Standards. 6.5.11 3S•17.12 Alternative Environmentally 6.5.12 Sensitive Area Plans. Subchapter 18 - Land disturbing Subchapter 6 - Development Standards, 6.2 - Land Disturbing activities Activities 3S•i8.1 Purpose. 6.2.1 3S•i8.2 Approval and Permit 6.2.2 Required. 3S•i8.3 Exemptions. 6.2.3 3S•i8.4 Applications. 6.2.4 3S•i8.5 Standards. 6.2.S 3S•i8.6 Remedies of the City 6.2.6 Immediately following this section is a new section 6.2.7 Commercial Excavation /Removal of Earth Products that was previously 35.12.13. Subchapter ig - Drainage Subchapter 6 - Development Standards, 6.3 - Drainage Standards standards 3S•19.1 Purpose. 6.3.1 Denton Development Code —Disposition Report DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•19.2 Compliance. 6.3.2 3S•19.3 Definitions. Subchapter 10 All definitions moved to Subchapter 10. 3S•19.4 General Drainage Requirements. 6.3.3 3S•19•S General Design Standards. 6.3.4 3S•i9.6 Specific Design Criteria. 6.3•S Subchapter zo - Transportation Subchapter 6 - Development Standards, 6.6 - Transportation Standards 3S•20.1 Purpose. 6.6.1 3S•20.2 Street Standards. 6.6.2 3S•20.3 Pedestrian / Bicycle Facility Standards 6.6.3 3S•20.4 Driveway Standards. 6.6.4 3S•20.5 Public Transit Standards. 6.6.5 Immediately following this section are the relocated sections for access, parking, and circulation requirements (6.6.6) and drive - through use requirements (6.6.7). We suggest moving drive - through use requirements to subchapter 4 — use - specific standards. Subchapter 21 - Water and wastewater standards Subchapter 6 - Development Standards, 6.4 - Water and Wastewater Standards 3S•2i.i Basic Policy 6.4.1 3S•21.2 Extensions of Water and Sewer Mains 6.4.2 3S•21.3 Basic Design Standards 6.4.3 3S•21.4 Easement Requirements 6.4.4 3S•21.5 Water Capacity Requirements 6.4•S 3S•2i.6 Sewer Capacity Requirements 6.4.6 3S.21.7 Impact Fees 6.4.7 3S•2i.8 Tapping Fees 6.4.8 3S•21.9 Oversize Participation by the City 6.4.9 3S•21.10 Pro -Rata Agreements 6.4.10 3S•2i.ii Alternative Water and Sewer Facilities 6.4.11 3S•21.12 Plans and Specifications 6.4.12 Subchapter ii - Gas well drilling and production Subchapter 4 - Use Regulations, 4.3 - Gas Well Drilling and Production 3S•22.1 Purpose. 4.3.1 3S•22.2 Definitions. 4.3.2 Denton Development Code —Disposition Report 10 DENTON DEVELOPMENT •r E REORGANIZATION AND REFORMAT DISPOSITION REP.R Current Chapter Proposed Location Comments 3S•22.3 Gas Well Drilling and 4.3.3 Production "By Right". 3S•22.4 Gas Well Drilling and 4.3.4 Production by Specific Use Permit or Planned Development Zoning District; Application and Requirements. 3S•22.5 Standards for Gas Well 4.3•S Drilling and Production. 3S•22.6 DRC Recommendations for 4.3.6 Specific Use Permits and Planned Development Zoning Districts. 3S•22.7 Gas Well Permit Required. 4.3.7 3S•22.8 Insurance and 4.3.8 Indemnification. 3S•22.g Security. 4.3.9 3S•22.io Review Of Permits for Gas 4.3.10 Well Drilling and Production. 3S•22.11 Periodic Reports. 4.3.11 3S•22.12 Notice of Activities. 4.3.12 3S•22.13 Amended Gas Well Permits. 4.3.13 3S•22.14 Transfer of Gas Well 4.3.14 Permits. 3S•22.15 Inspection. 4.3.15 3S•22.16 Remedies of the City. 4.3.16 3S•22.17 Enforcements, Right of 4.3.17 Entry. Subchapter 23 - Definitions Subchapter io — Definitions 3S•23.i General. 1o.1— General Rules of Should interpretations be incorporated Construction into this Subchapter? 10.2 Interpretations? 3S•23.2 Definitions and Terms. 10.3 —Definitions of Measurement Measurement terms (such as height, Terms. setbacks, lot coverage, etc.) are included 10.4 —Definitions of General Use in 10.3. Each land use category should be Categories and Specific Use Types defined. Each specific land use should be 1o.S —All Other Terms Defined defined within each category. The use categories and specific use definitions will be organized following review of the permitted use table. Remaining terms are included in the final section. Subchapter 24 — Electric Subchapter 6 — Development Standards, 6.io — Electric Standards standards 3S•24.1 Purpose. 6.10.1 Denton Development Code —Disposition Report 11 IIM Denton Development Code —Disposition Report 12 Exhibit 2 Table of Contents Subchapter 1: General Provisions ............................................... ............................... 1 1.1 Preamble ............................................................................................................................................. ..............................1 1.2 Purpose ................................................................................................................................................ ..............................1 1.3 Short Chapter .................................................................................................................................... ..............................1 1.4 Application of This Chapter ......................................................................................................... ..............................1 1.5 Inconsistent Provisions .................................................................................................................. ..............................2 1.6 Conflict with Private Restrictions ............................................................................................... ..............................3 1.7 Severability ......................................................................................................................................... ..............................3 1.8 Effective Date .................................................................................................................................... ..............................3 1.9 Enforcement and Penalty ............................................................................................................. ..............................3 1.9.1. Compliance Required .................................................................................................................... ..............................3 1.9.2. Notice of Intent to Suspend or Revoke .................................................................................... ..............................4 1.9.3. Suspension and Revocation of a Variance or Special Exception ..................................... ..............................4 1.9.4. Enforcement and Penalties .......................................................................................................... ..............................4 Subchapter 2: Administration .................................................... ............................... 7 2.1 Purpose and Organization of this Subchapter ...................................................................... ..............................7 2.1.8. Purpose ............................................................................................................................................... ..............................7 2.1.9. Procedures ........................................................................................................................................ ..............................7 2.2 Summary Table of Procedures .................................................................................................... ..............................8 2.3 Common Review Procedures ...................................................................................................... ..............................8 2.3.1. Step 1: Applicant Attends a Pre - Application Meeting ........................................................ ..............................8 2.3.2. Step 2: Applicant Attends Development Review Committee Meeting ........................ ..............................8 2.3.3. Step 3: Application Submittal .................................................................................................... ..............................8 2.3.4. Step 4: Application Completeness Determination .............................................................. ..............................8 2.3.5. Step 5: Application Review and Preparation of Staff Report ............................................ ..............................8 2.3.6. Step 6: Notice of Public Hearings ............................................................................................... ..............................9 2.3.7. Step 7: Public Hearings .................................................................................................................. ..............................9 2.3.8. Step 8: Decision and Findings ..................................................................................................... ..............................9 2.3.9. Step 9: Amendments to Permits or Other Approvals .......................................................... ..............................9 2.3.10. Step 10: Lapse of Approval ........................................................................................................... ..............................9 2.4 Plan and Ordinance Amendment Procedures ...................................................................... ..............................9 2.4.1. Denton Plan Amendment Procedure ....................................................................................... ..............................9 2.4.2. Zoning Amendment Procedure ................................................................................................ .............................12 2.4.3. Development Criteria Manual Procedure .............................................................................. .............................14 2.5 Development Permits and Approvals .................................................................................... .............................16 2.5.1. Staff Review Procedure ................................................................................................................ .............................16 2.5.2. Planning and Zoning Commission Procedure ...................................................................... .............................16 2.5.3. Exaction Proportionality Determination and Appeal Procedure ................................... .............................18 2.5.4. Specific Use Permits ....................................................................................................................... .............................21 2.6 Subdivision Approvals ................................................................................................................. .............................23 2.6.1. Purpose .............................................................................................................................................. .............................23 2.6.2. Expiration of Dormant Projects ................................................................................................. .............................23 2.6.3. Compliance and Enforcement ................................................................................................... .............................24 2.6.4. Approval of Plat Required ........................................................................................................... .............................24 Denton, TX Development Code Page iii Table of Contents 2.6.5. Application and Fees ..................................................................................................................... .............................26 2.7.1. 2.6.6. Pre - application Conference ........................................................................................................ .............................27 2.7.2. 2.6.7. General Development Plan ......................................................................................................... .............................27 2.7.3. 2.6.8. Preliminary Plats ............................................................................................................................. .............................29 2.7.4. 2.6.9. Final Plats .......................................................................................................................................... .............................31 2.7.5. 2.6.10. Replat .................................................................................................................................................. .............................33 2.8 Historic Property Applications .................................................................................................. .............................44 2.6.11. Amending Plat ................................................................................................................................. .............................34 Certificate of Appropriateness ................................................................................................... .............................44 2.6.12. Minor Plat .......................................................................................................................................... .............................34 Historic Conservation District ..................................................................................................... .............................47 2.6.13. Vacating Plat .................................................................................................................................... .............................34 Historic Landmark Designation ................................................................................................. .............................49 2.6.14. Conveyance Plat ............................................................................................................................. .............................34 2.6.15. Development Plats ......................................................................................................................... .............................36 2.6.16. Gas Well Development Plats ....................................................................................................... .............................36 2.7 Flexibility and Relief Procedures .............................................................................................. .............................38 2.7.1. Board of Adjustment Procedure ................................................................................................ .............................38 2.7.2. Watershed Permit Relief Provisions ......................................................................................... .............................40 2.7.3. Tree Preservation Relief Provisions .......................................................................................... .............................41 2.7.4. Vested Rights ................................................................................................................................... .............................42 2.7.5. Religious Freedom Procedures .................................................................................................. .............................44 2.8 Historic Property Applications .................................................................................................. .............................44 Changes to the Zoning Map ....................................................................................................... .............................58 2.8.1. Certificate of Appropriateness ................................................................................................... .............................44 Industrial Centers Districts .......................................................................................................... .............................63 2.8.2. Historic Conservation District ..................................................................................................... .............................47 2.8.3. Historic Landmark Designation ................................................................................................. .............................49 2.9 Boards, Commissions, and Committees ................................................................................ .............................50 2.9.1. Planning and Zoning Commission ........................................................................................... .............................50 2.9.2. Board of Adjustment ..................................................................................................................... .............................51 2.9.3. Historic Landmark Commission ................................................................................................. .............................53 2.9.4. Development Review Committee ............................................................................................ .............................54 Subchapter 3: Zoning Districts ................................................. ............................... 57 3.1 Official Maps .................................................................................................................................... .............................57 3.1.1. Compliance Required ................................................................................................................... .............................57 3.1.2. Classification of Districts .............................................................................................................. .............................57 3.1.3. Official Zoning Map ....................................................................................................................... .............................58 3.1.4. District Boundaries ......................................................................................................................... .............................58 3.1.5. Digital Mapping .............................................................................................................................. .............................58 3.1.6. Changes to the Zoning Map ....................................................................................................... .............................58 3.2 Base Zoning Districts .................................................................................................................... .............................59 3.2.1. Rural Districts ................................................................................................................................... .............................59 3.2.2. Neighborhood Residential Districts ......................................................................................... .............................59 3.2.3. Downtown University Core Districts ........................................................................................ .............................60 3.2.4. Community Mixed -Use Centers Districts ............................................................................... .............................61 3.2.5. Regional Mixed -Use Centers Districts ...................................................................................... .............................61 3.2.6. Employment Centers Districts ................................................................................................... .............................62 3.2.7. Industrial Centers Districts .......................................................................................................... .............................63 3.3 Special Purpose and Overlay Districts .................................................................................... .............................63 3.3.1. Purpose .............................................................................................................................................. .............................63 3.3.2. General Standards .......................................................................................................................... .............................63 3.3.3. Creation of Special Purpose and Overlay Districts .............................................................. .............................64 3.3.4. Denton Municipal Airport Overlay District ............................................................................ .............................64 3.3.5. Fry Street Overlay District ............................................................................................................ .............................75 3.3.6. Infill Special Purpose District ...................................................................................................... .............................82 Denton, TX Development Code Page iv Table of Contents 3.3.7. Master Planned Community (MPC) District ........................................................................... .............................89 3.3.8. Rayzor Ranch Overlay District .................................................................................................... .............................95 3.3.9. Unicorn Lake Overlay District .................................................................... ............................... ............................108 3.3.10. Historic Landmark Preservation and Historic Districts Generally .. ............................... ............................111 3.3.11. Historic Conservation District .................................................................... ............................... ............................115 3.3.12. Historic District ............................................................................................... ............................... ............................117 3.3.13. Oak - Hickory Historic District ...................................................................... ............................... ............................121 3.3.14. Bell Avenue Historic Conservation District ........................................... ............................... ............................126 3.3.15. West Oak Area Historic District ................................................................. ............................... ............................137 Subchapter4: Use Regulations .............................................. ............................... 143 4.1 Table of permitted uses ............................................................................... ............................... ............................143 5: Dimensional Requirements .............................. ............................... 4.1.1. Explanation of Table Abbreviations ........................................................ ............................... ............................143 4.1.2. Organization of Table ................................................................................... ............................... ............................143 4.2 Use- Specific Standards ................................................................................ ............................... ............................151 4.2.1. Residential Land Use Categories .............................................................. ............................... ............................151 4.2.2. Commercial Uses ........................................................................................... ............................... ............................163 4.2.3. Industrial Uses ................................................................................................ ............................... ............................170 4.2.4. Public, Institutional, Religious, and Civic Uses ..................................... ............................... ............................172 4.2.5. Public and Semi - public Utility Uses ......................................................... ............................... ............................173 4.2.6. Accessory Uses ............................................................................................... ............................... ............................179 4.2.7. Temporary Uses ............................................................................................. ............................... ............................182 4.3 Gas Well Drilling and Production ............................................................. ............................... ............................186 Security ............................................................................................................. ............................... ............................206 4.3.1. Purpose, Authority and Applicability ...................................................... ............................... ............................186 4.3.2. Zoning District Classifications for Gas Well Drilling and Production .......................... ............................187 4.3.3. Required Authorization for Gas Well Drilling and Production in City Limits ............ ............................187 4.3.4. Standards for Gas Well Drilling and Production .................................. ............................... ............................189 4.3.5. Gas Well Development Site Plan and Watershed Protection Permit .......................... ............................200 4.3.6. Gas Well Permit Required ........................................................................... ............................... ............................203 4.3.7. Insurance and Indemnification ................................................................. ............................... ............................204 4.3.8. Security ............................................................................................................. ............................... ............................206 4.3.9. Review of Permits for Gas Well Drilling and Production .................. ............................... ............................207 4.3.10. Periodic Reports ............................................................................................. ............................... ............................209 4.3.11. Notice of Activities ........................................................................................ ............................... ............................209 4.3.12. Amended Gas Well Permits ........................................................................ ............................... ............................210 4.3.13. Transfer of Gas Well Permits ...................................................................... ............................... ............................211 4.3.14. Inspection ........................................................................................................ ............................... ............................212 4.3.15. Appeals and Variances ................................................................................. ............................... ............................212 4.3.16. Remedies of the City ..................................................................................... ............................... ............................215 4.3.17. Enforcements, Right of Entry ..................................................................... ............................... ............................215 Subchapter 5: Dimensional Requirements .............................. ............................... 217 5.1 Purpose .............................................................................................................. ............................... ............................217 5.2 Yard Measurements ...................................................................................... ............................... ............................217 5.3 Dimensional Standards by Zoning District ........................................... ............................... ............................217 5.3.1. Rural and Neighborhood Residential Districts .................................... ............................... ............................218 5.3.2. Downtown University Core; Community Mixed -use Centers; Regional Mixed -use Centers ..........218 5.3.3. Employment Centers; Industrial Centers ............................................... ............................... ............................219 5.4 Exceptions to Dimensional Standards ................................................... ............................... ............................220 5.4.1. Minimum Front Yard Setbacks .................................................................. ............................... ............................220 5.4.2. Height Regulations ....................................................................................... ............................... ............................220 Denton, TX Development Code Page v Table of Contents 5.5 Accessory Buildings and Structures ........................................................ ............................... ............................220 5.5.2. General Regulations ..................................................................................... ............................... ............................221 5.6 Minimum Floor Area Requirements ........................................................ ............................... ............................222 5.7 Maximum Persons Occupying a Dwelling ............................................ ............................... ............................222 Subchapter 6: Development Standards ................................... ............................... 223 6.1 General Provisions ......................................................................................... ............................... ............................223 6.1.1. Purpose and Intent ....................................................................................... ............................... ............................223 6.4.1. 6.1.2. Application ...................................................................................................... ............................... ............................223 6.4.2. 6.1.3. Procedure /Plans Required .......................................................................... ............................... ............................223 6.4.3. 6.1.4. Criteria for Approval ..................................................................................... ............................... ............................226 6.4.4. 6.1.5. Alternative Development Plan .................................................................. ............................... ............................226 6.4.5. 6.2 Land - Disturbing Activities .......................................................................... ............................... ............................226 6.2.1. Purpose ............................................................................................................. ............................... ............................226 6.2.2. Approval and Permit Required ................................................................. ............................... ............................227 6.2.3. Exemptions ...................................................................................................... ............................... ............................227 6.2.4. Applications .................................................................................................... ............................... ............................227 6.2.5. Standards ......................................................................................................... ............................... ............................228 6.2.6. Remedies of the City ..................................................................................... ............................... ............................229 6.2.7. Commercial Excavation /Removal of Earth Products ......................... ............................... ............................230 6.3 Drainage Standards ...................................................................................... ............................... ............................230 6.3.1. Purpose ............................................................................................................. ............................... ............................230 6.3.2. Compliance ..................................................................................................... ............................... ............................231 6.3.3. General Drainage Requirements .............................................................. ............................... ............................231 6.3.4. General Design Standards .......................................................................... ............................... ............................234 6.3.5. Specific Design Criteria ................................................................................ ............................... ............................236 6.4 Water and Wastewater Standards ........................................................... ............................... ............................245 6.4.1. Basic Policy ...................................................................................................... ............................... ............................245 6.4.2. Extensions of Water and Sewer Mains ................................................... ............................... ............................245 6.4.3. Basic Design Standards ............................................................................... ............................... ............................246 6.4.4. Easement Requirements ............................................................................. ............................... ............................248 6.4.5. Water Capacity Requirements .................................................................. ............................... ............................249 6.4.6. Sewer Capacity Requirements .................................................................. ............................... ............................250 6.4.7. Impact Fees ..................................................................................................... ............................... ............................250 6.4.8. Tapping Fees ................................................................................................... ............................... ............................250 6.4.9. Oversize Participation by the City ............................................................ ............................... ............................250 6.4.10. Pro -Rata Agreements ................................................................................... ............................... ............................251 6.4.11. Alternative Water and Sewer Facilities ................................................... ............................... ............................254 6.4.12. Plans and Specifications .............................................................................. ............................... ............................259 6.5 Environmentally Sensitive Areas .............................................................. ............................... ............................259 6.5.1. Purpose ............................................................................................................. ............................... ............................259 6.5.2. Application ...................................................................................................... ............................... ............................260 6.5.3. Environmentally Sensitive Areas Review ............................................... ............................... ............................260 6.5.4. Environmentally Sensitive Area Classifications ................................... ............................... ............................261 6.5.5. Official Maps .................................................................................................... ............................... ............................262 6.5.6. Developed Floodplain Development Standards ................................ ............................... ............................262 6.5.7. Undeveloped Floodplain Development Standards ........................... ............................... ............................263 6.5.8. Riparian Buffer and Water Related Habitat Development Standards ......................... ............................264 6.5.9. Upland Habitat Development Standards .............................................. ............................... ............................265 6.5.10. General Design and Improvement Standards ..................................... ............................... ............................265 6.5.11. Clustering Standards .................................................................................... ............................... ............................266 Denton, TX Development Code Page vi Table of Contents 6.5.12. Alternative Environmentally Sensitive Area Plan ............................... ............................... ............................266 6.6 Transportation Standards ........................................................................... ............................... ............................266 6.6.1. Purpose ............................................................................................................. ............................... ............................266 6.6.2. Street Standards ............................................................................................ ............................... ............................266 6.6.3. Pedestrian /Bicycle Facility Standards ..................................................... ............................... ............................276 6.6.4. Driveway Standards ...................................................................................... ............................... ............................278 6.6.5. Public Transit Standards .............................................................................. ............................... ............................281 6.6.6. Access, Parking and Circulation Requirements ................................... ............................... ............................283 6.6.7. Drive - through Use Requirements ............................................................ ............................... ............................283 6.7 Landscaping and Buffers ............................................................................. ............................... ............................284 6.7.1. Tree Preservation and Landscape Requirements ............................... ............................... ............................284 6.7.2. Buffer Requirements ..................................................................................... ............................... ............................295 6.7.3. Perimeter Fences and Screening Requirements ................................. ............................... ............................298 6.8 Site Design Requirements .......................................................................... ............................... ............................300 6.8.1. Residential Buildings .................................................................................... ............................... ............................300 6.8.2. Multiple Unit Residential Dwellings and Multi Family Developments ....................... ............................302 6.8.3. Nonresidential and Mixed -Use Buildings .............................................. ............................... ............................305 6.8.4. Nonresidential and Mixed -Use Buildings in a Pedestrian Oriented District ............. ............................308 6.8.5. Large Scale Development Regulations .................................................. ............................... ............................309 6.8.6. Left Blank for Future Use ............................................................................. ............................... ............................312 6.8.7. Solid Waste and Recycling Facilities Design Standards .................... ............................... ............................312 6.8.8. Light and Glare Performance Requirements ........................................ ............................... ............................312 6.8.9. Industrial Performance Standards ........................................................... ............................... ............................313 6.9 Parking Standards .......................................................................................... ............................... ............................315 6.9.1. Purpose ............................................................................................................. ............................... ............................315 6.9.2. Generally .......................................................................................................... ............................... ............................315 6.9.3. Application ...................................................................................................... ............................... ............................315 6.9.4. Spaces Required ............................................................................................ ............................... ............................316 6.9.5. Unspecified Uses ........................................................................................... ............................... ............................317 6.9.6. Maximum Allowable Number of Spaces ............................................... ............................... ............................317 6.9.7. Credit for On- street Parking ....................................................................... ............................... ............................317 6.9.8. Parking Accessibility Standards ................................................................ ............................... ............................318 6.9.9. Limitations, Location, Use of Facilities ................................................... ............................... ............................318 6.9.10. Design Requirements ................................................................................... ............................... ............................319 6.9.11. Development and Maintenance .............................................................. ............................... ............................320 6.9.12. Bicycle Parking ............................................................................................... ............................... ............................320 6.10 Electric Standards .......................................................................................... ............................... ............................321 6.10.1. Purpose ............................................................................................................. ............................... ............................321 6.10.2. Regulations ...................................................................................................... ............................... ............................321 Subchapter 7: Signs and Advertising Devices .......................... ............................... 323 7.1 Purpose and Intent ........................................................................................ ............................... ............................323 7.2 Exemptions ...................................................................................................... ............................... ............................323 7.3 Certain Prohibited Signs .............................................................................. ............................... ............................324 7.3.1. Signs on Private Property without Consent of Owner ...................... ............................... ............................324 7.3.2. Parking and Maneuvering Areas .............................................................. ............................... ............................325 7.3.3. Unsafe Signs .................................................................................................... ............................... ............................325 7.3.4. Signs on Public Property ............................................................................. ............................... ............................325 7.3.5. Code Compliance .......................................................................................... ............................... ............................325 7.3.6. Trees and Shrubs ........................................................................................... ............................... ............................325 7.3.7. Motion Picture Signs .................................................................................... ............................... ............................325 Denton, TX Development Code Page vii Table of Contents 7.8 Permits ............................................................................................................... ............................... ............................328 7.8.1. 7.3.8. Signs Obscuring or Interfering with View ............................................. ............................... ............................325 7.9.1. 7.8.2. 7.3.9. Certain Illuminated Signs ............................................................................ ............................... ............................325 7.9.2. 7.8.3. 7.3.10. Portable Signs ................................................................................................. ............................... ............................326 7.9.3. 7.8.4. 7.3.11. Off - Premises Signs .................................................................................................................... ............................... 326 7.4 Administration and Enforcement ............................................................ ............................... ............................326 7.9.5. 7.5 Appeal, Variances, and Special Exceptions ........................................... ............................... ............................326 7.9.6. Relocation Under Eminent Domain ........................................................ ............................... ............................331 7.5.1. Compliance with State Law ....................................................................... ............................... ............................326 7.9.7. Signs Located on Nonconforming Premises ........................................ ............................... ............................331 7.5.2. Variances to the Sign Regulations ........................................................... ............................... ............................326 7.9.8. Nonconforming Sign Permits .................................................................... ............................... ............................332 7.5.3. Special Exceptions ......................................................................................... ............................... ............................327 7.11.9. 7.6 Historical Landmark Signs .......................................................................... ............................... ............................327 Denton, TX 7.7 Licenses ............................................................................................................. ............................... ............................327 Development Code Page viii 7.7.1. Required ........................................................................................................... ............................... ............................327 7.7.2. Prerequisites to Issuance; Fee; Examination ........................................ ............................... ............................327 7.7.3. Revocation ....................................................................................................... ............................... ............................328 7.7.4. Appeal of Revocation ................................................................................... ............................... ............................328 7.7.5. State License ................................................................................................... ............................... ............................328 7.8 Permits ............................................................................................................... ............................... ............................328 7.8.1. Required ........................................................................................................... ............................... ............................328 7.9.1. 7.8.2. Application Procedure ................................................................................. ............................... ............................328 7.9.2. 7.8.3. Fees .................................................................................................................... ............................... ............................328 7.9.3. 7.8.4. Duration ............................................................................................................ ............................... ............................329 7.9.4. 7.8.5. Revocation; Appeals ..................................................................................... ............................... ............................329 7.9.5. 7.8.6. Transfer of State Outdoor Advertising Sign Permits ......................... ............................... ............................329 7.9.6. 7.9 Nonconforming Signs .................................................................................. ............................... ............................329 7.9.1. Definition ......................................................................................................... ............................... ............................329 7.9.2. Applicability .................................................................................................... ............................... ............................330 7.9.3. Registration of Nonconforming Portable and Off - Premises (Billboard) Signs ......... ............................330 7.9.4. Presumption .................................................................................................... ............................... ............................330 332 7.9.5. Destruction; Repair ....................................................................................... ............................... ............................331 7.9.6. Relocation Under Eminent Domain ........................................................ ............................... ............................331 7.9.7. Signs Located on Nonconforming Premises ........................................ ............................... ............................331 7.9.8. Nonconforming Sign Permits .................................................................... ............................... ............................332 7.10 Removal of Unlawful Signs ......................................................................... ............................... ............................332 7.10.1. Notice and Order ........................................................................................... ............................... ............................332 7.10.2. Removal; Appeals .......................................................................................... ............................... ............................332 7.10.3. Impoundment; Redemption; Disposal ................................................... ............................... ............................332 7.10.4. Recovery of Costs ...................................................................................................................... ............................... 332 7.10.5. Appeal ............................................................................................................... ............................... ............................333 7.10.6. Summary Removal of Hazardous Signs ................................................. ............................... ............................333 7.10.7. Certificate of Occupancy ............................................................................. ............................... ............................333 7.11 Technical Requirements .............................................................................. ............................... ............................333 7.11.1. Manner of Measurement ............................................................................ ............................... ............................333 7.11.2. Abandoned Signs and Supporting Structures ..................................... ............................... ............................336 7.11.3. Sign Face Standards ..................................................................................... ............................... ............................337 7.11.4. Permit Required ............................................................................................. ............................... ............................338 7.11.5. Sign Maintenance .......................................................................................... ............................... ............................338 7.11.6. Wind Loads ...................................................................................................... ............................... ............................338 7.11.7. Use of State Right -Of- Way .......................................................................... ............................... ............................338 7.11.8. Inflatable Devices .......................................................................................... ............................... ............................338 7.11.9. Clearance from Electrical Lines ................................................................. ............................... ............................338 Denton, TX Development Code Page viii Table of Contents 7.12 Portable Signs ................................................................................................. ............................... ............................339 7.12.1. Prohibited ........................................................................................................ ............................... ............................339 7.12.2. Lawful Nonconformity ................................................................................. ............................... ............................339 7.12.3. Lawful Nonconformity from November 5, 1997 ................................. ............................... ............................339 7.12.4. Maintenance of Nonconforming Signs .................................................. ............................... ............................339 8.5.1. 7.12.5. Anchoring ........................................................................................................ ............................... ............................339 7.15.1. 7.13 Regulation of Signs by Zoning Districts ................................................. ............................... ............................339 7.15.2. 7.13.1. Residential Districts ...................................................................................... ............................... ............................339 7.16 Illustrations 7.13.2. Nonresidential Districts ............................................................................... ............................... ............................340 7.16.1. 7.13.3. Planned Development Districts ................................................................ ............................... ............................342 7.16.2. 7.13.4. Central Business Districts ............................................................................ ............................... ............................342 7.16.3. 7.14 Attached Signs ................................................................................................ ............................... ............................343 7.14.1. Scope ................................................................................................................. ............................... ............................343 7.14.2. Roof signs; Projection ................................................................................... ............................... ............................343 7.14.3. Projecting Signs ............................................................................................. ............................... ............................344 7.14.4. Signs on Common Buildings ..................................................................... ............................... ............................344 8.5.1. 7.15 Temporary Signs ............................................................................................ ............................... ............................344 Conditions Imposed ..................................................................................... ............................... ............................349 7.15.1. Temporary Signs ............................................................................................ ............................... ............................344 Procedures ....................................................................................................... ............................... ............................349 7.15.2. Wind Device Signs ......................................................................................... ............................... ............................344 Designation on Zoning Map ...................................................................... ............................... ............................349 7.16 Illustrations ....................................................................................................... ............................... ............................345 Reduction and Mitigation of Legally Nonconforming Prohibited Signs ................... ............................349 7.16.1. Ground Sign Setback .................................................................................... ............................... ............................345 7.16.2. Measurement of Height .............................................................................. ............................... ............................345 7.16.3. Number and Placement of Ground Signs ............................................. ............................... ............................346 7.16.4. Visibility Point ................................................................................................. ............................... ............................346 7.16.5. Exceptions to Effective Area ...................................................................... ............................... ............................347 7.17 Special Sign Districts ..................................................................................... ............................... ............................347 7.17.1. Purpose ............................................................................................................. ............................... ............................347 7.17.2. Application and Plans .................................................................................. ............................... ............................348 7.17.3. Sign Plan ........................................................................................................... ............................... ............................348 7.17.4. Creation, Review of Plan, Criteria ............................................................. ............................... ............................348 8.5.1. 7.17.5. Conditions Imposed ..................................................................................... ............................... ............................349 8.5.2. 7.17.6. Procedures ....................................................................................................... ............................... ............................349 8.5.3. 7.17.7. Designation on Zoning Map ...................................................................... ............................... ............................349 7.17.8. Reduction and Mitigation of Legally Nonconforming Prohibited Signs ................... ............................349 Subchapter 8: Nonconformities ............................................. ............................... 351 8.1 Purpose .............................................................................................................. ............................... ............................351 8.2 Types of Nonconformity .............................................................................. ............................... ............................351 8.2.1. Land Uses ......................................................................................................... ............................... ............................351 8.2.2. Structures ......................................................................................................... ............................... ............................351 8.3 Special Exceptions ......................................................................................... ............................... ............................351 8.4 Exemptions ...................................................................................................... ............................... ............................352 8.4.1. Residential Structures .................................................................................. ............................... ............................352 8.4.2. Prior Construction Approved .................................................................... ............................... ............................352 8.4.3. Noncompliance Due to Outside Action ................................................. ............................... ............................352 8.5 Nonconforming Land Use Standards ..................................................... ............................... ............................352 8.5.1. Compliance for Nonconforming Uses .................................................... ............................... ............................352 8.5.2. Changing Nonconforming Land Uses .................................................... ............................... ............................353 8.5.3. Discontinuation of Nonconforming Uses ............................................. ............................... ............................353 8.6 Nonconforming Structures ........................................................................ ............................... ............................353 Denton, TX Development Code Page ix Table of Contents 8.6.1. Compliance for Nonconforming Structures ......................................... ............................... ............................353 8.6.2. Changing Nonconforming Structures .................................................... ............................... ............................354 8.7 Amortization of Nonconforming Land Uses and Structures .......... ............................... ............................355 8.8 Illegal Uses ........................................................................................................ ............................... ............................355 Subchapter 9: Subdivision Regulations ................................... ............................... 357 9.1 Authority ........................................................................................................... ............................... ............................357 9.2 Purpose .............................................................................................................. ............................... ............................357 9.7.1. 9.3 Jurisdiction ....................................................................................................... ............................... ............................357 9.7.2. 9.4 Application ....................................................................................................... ............................... ............................357 9.7.3. 9.6.4. 9.4.1. Land Included ................................................................................................. ............................... ............................357 9.7.4. 9.6.5. 9.4.2. Environmentally Sensitive Areas (ESA) Regulations .......................... ............................... ............................358 9.7.5. 9.6.6. 9.4.3. Development Standards and Requirements in the Extraterritorial Jurisdiction ..... ............................358 9.7.6. 9.5 Lots, Access and Common Areas ............................................................. ............................... ............................358 9.7.7. Drainage Requirements .............................................................................. ............................... ............................364 9.5.1. Lot Size .............................................................................................................. ............................... ............................358 9.7.8. Homeowners Association Required ........................................................ ............................... ............................365 9.5.2. Access to Street .......................................................................................................................... ............................... 358 9.5.3. Facing ................................................................................................................ ............................... ............................359 9.5.4. Common Area and Facilities ...................................................................... ............................... ............................359 9.6 Construction .................................................................................................... ............................... ............................359 9.6.1. Pre - construction Phase Procedures and Requirements ................... ............................... ............................359 9.7.1. 9.6.2. Development Contract Required ............................................................. ............................... ............................359 9.7.2. 9.6.3. Construction, Inspection, and Acceptance ........................................... ............................... ............................359 9.7.3. 9.6.4. Cost of Improvements and City Participation ...................................... ............................... ............................360 9.7.4. 9.6.5. Applicant to Extend Mains and Streets to Subdivisions ................... ............................... ............................360 9.7.5. 9.6.6. Plat Required Before Issuance of Building Permits ............................ ............................... ............................360 9.7.6. 9.6.7. Utility Extension Regulations .................................................................... ............................... ............................360 9.7.7. 9.7 Gated Community Requirements ............................................................ ............................... ............................362 9.7.1. Streets ................................................................................................................ ............................... ............................362 9.7.2. Water and Sewer ............................................................................................ ............................... ............................363 9.7.3. Street Lighting ................................................................................................ ............................... ............................363 9.7.4. Electric Utility Infrastructure ...................................................................... ............................... ............................363 9.7.5. Public Safety and Other Access Requirements .................................... ............................... ............................364 9.7.6. Solid Waste Requirements ......................................................................... ............................... ............................364 9.7.7. Drainage Requirements .............................................................................. ............................... ............................364 9.7.8. Homeowners Association Required ........................................................ ............................... ............................365 Subchapter 10: Definitions .................................................... ............................... 367 10.1 Rules of Construction ................................................................................... ............................... ............................367 10.2 Interpretations ................................................................................................ ............................... ............................368 10.3 Definitions of Measurement Terms ......................................................... ............................... ............................368 10.3.1. Density / Intensity ........................................................................................... ............................... ............................368 10.3.2. Bulk ..................................................................................................................... ............................... ............................368 10.3.3. Height ................................................................................................................ ............................... ............................369 10.3.4. Lot Characteristics ......................................................................................... ............................... ............................370 10.3.5. Setbacks and Yards ....................................................................................... ............................... ............................372 10.4 Definitions of General Use Categories and Specific Use Types ..... ............................... ............................373 10.4.1. Residential Uses ............................................................................................. ............................... ............................373 10.4.2. Commercial Uses ........................................................................................... ............................... ............................377 10.4.3. Industrial Land Use Categories ................................................................. ............................... ............................382 Denton, TX Development Code Page x Table of Contents 10.4.4. Institutional Land Use Categories ............................................................ ............................... ............................384 10.4.5. Accessory Use Categories ........................................................................... ............................... ............................388 10.4.6. Temporary Use Categories ......................................................................... ............................... ............................389 10.5 All Other Terms Defined .............................................................................. ............................... ............................390 Denton, TX Development Code Page xi Exhibit 3 Subchapter 2: Administration 2.2. Summary Table of Procedures 2.1.2 Summary of Subchapter Organization Table 1 Denton Procedures Application Review Procedure V�VIV IV VI VI VVVVIVI .::.. :.. o o Each procedure is subject to the common Pre staff Planning and Historic review procedures in Sec. 2.3 and also the Application and /or Zoning Board of Landmark specific requirements and criteria in the referenced section. Conference DRC Commission City Council Adjustment Commission s �•s s Denton Plan or Mobility Plan M R [R] [D] Amendment (2.4.1) Zoning Amendment (2.4.2) M R [R] [D] CEEMEMEM Specific Use Permit (2.5.1) M R [R] [D] Site Plan Review (2.5.2) O D At Director At Director A discretion discretion Vested Rights (2.5.3) O D A Watershed Protection Permit$ (4.3) O D A Special Sign District' (7.17) M R [R] [D] ®s General Developme7PIan 4) M R [D] Preliminary Plat (2.6 M R [D] Final Plat (2.6.6) O R [D] Minor Plat (o) O D At Director discretion Replat (2.6.8) O R [D] Amending Plat (2.6.9) O D At Director discretion Vacating Plat (2.6.1o) O R [D] Conveyance Plat (2.6.11.) O R [D] Development Plat (2.6.12) O R [D] Gas Well Development Plat (o) O R [D] s s Variance (2.7.1) M R A [D] Special Exception (2.7.2) O [R] [DI- Alternative Development Plan (2.7.3) M R [D] A Religious Freedom (2.7.4)" O [D] Certificate of Appropriateness (2.8.1) O A [D] Historic Conservation District (3.3.11) O [D] R Historic Landmark Designation O [R] [D] R (2.8.3) ' STAFF: Should we include an annexation process in this Subchapter? We noticed that the annexation procedures from the old subdivision regulations (Sections 34 -35 through 34 -37) were not carried forward to the DDC. 8 STAFF: We recommend leaving this procedure in the gas well drilling and production Section 4.3, and removing this permit from the table. 9 STAFF: We recommend leaving this procedure in the sign code in Subchapter 7. - STAFF: We changed this from BOA to City Council. The current code lists special exceptions in the zoning amendment procedures, yet refers to the "Board" in the approval criteria. Which approval body is handling these cases today? " STAFF: What is the procedure for approval of Religious Freedom applications? This should be further developed in subsequent drafts (both in the summary table and the procedures in Section 2.7.6). Denton, TX Development Code — Staff Draft Page 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -138, Version: 1 Agenda Information Sheet DEPARTMENT: CMO CM/ ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Receive a report, hold a discussion, and give staff direction regarding Smoking Ordinance No. 2012 -367. BACKGROUND This report is being provided to follow up on the Jan. 6 City Council discussion, related to Smoking Ordinance No. 2012 -367. For your review, Exhibit 1 provides a copy of the current ordinance, Exhibit 2 is a clean copy of the proposed ordinance, as based on direction from the Jan. 6 Work Session, while Exhibit 3 is the redlined version of the ordinance in Exhibit 2 for comparison purposes. The proposed revisions to the ordinance provide for a comprehensive ban on smoking, by removing most exceptions that previously allowed smoking in certain circumstances and by adding e- cigarettes. Proposed Revisions 1. Updated definition of cigar bar to further clarify such operations, as provided by the American Heart Association (Section 1, Definitions). 2. Added the definition of electronic cigarettes (e -cigs) and included e -cigs in the definition of smoke /smoking for purposes of this ordinance. In doing so, the use of e -cigs is expressly prohibited in the same locations as smoking is prohibited (Section], Definitions). Staff also added a provision restricting the sale of e -cigs to persons under the age of 18 (Section 5, Sale of Electronic Cigarettes or Liquid Nicotine to Persons Younger than 18 years ofAge Prohibited). 3. Removed the exception to bars, which had allowed for smoking in bars that permitted only persons under the age of 18 to enter (Section 2 (a)(13) Smoking prohibited in certain places, and Section 4 (a) (5) Smoking prohibited not in certain places). 4. Removed the exception to the smoking ban for bingo parlors, effectively making a bingo parlor a non- smoking facility (Section 2, (a)(18), Smoking prohibited in certain places, and Section 4 (a)(6,) Smoking prohibited not in certain places). 5. Adds a designated distance of 30 -feet from an entrance to a location in which smoking is prohibited, but provides an exception to the Downtown Implementation area, recognizing the challenges associated with restaurants and bars that have entrances in close proximity (Section 2 (a)(21), Smoking prohibited in certain places). 6. In keeping with the 2012 ordinance, which prohibits smoking within 30 ft. from public library entrances, this provision has been extended to all Parks -owned recreation centers (Section 2(a)(10), Smoking prohibited in certain places). City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -138, Version: 1 Smoking is still permitted in private residences (unless used as a childare adult daycare, or healthcare facility), vehicles, private clubs and fraternal organizations, open -aired outdoor patios of restaurants and bars, tobacco shops and bars, and cigar bars. Hookah businesses would be considered tobacco bars, thus remain exempt from the smoking ban. Public Input Staff posed the following questions on EngageDenton.com from Jan. 30 to Feb. 10, the results of which are displayed next to the respective question: 1. Would you like to see the City ban smoking within a designated distance from public entrances? (49, yes; 52, no) 2. Should e- cigarettes be banned in the same locations where smoking is banned? (27, yes; 58 no) 3. Are you in favor of extending the current smoking ban to stand -alone bars? (24, yes; 54 no) Council Member Ryan will host his monthly town hall meeting at North Branch Library on Feb. 16, during which staff will provide information related to the smoking ordinance revisions and receive public input. At the time of drafting the AIS, the outcome of the meeting is unavailable to include herein, but will be provided at the Feb. 17 Work Session. OPTIONS 1. Direct staff to provide a revised draft ordinance for City Council consideration. 2. Take no action at this time. PRIOR ACTION/REVIEW (Council, Boards, Commissions) 1. Ad -hoc Smoking Committee Meetings and Recommendation to the City Council, September - December 2012. 2. City Council Consideration of Smoking Ordinance No. 2012 -367, December 2012. 3. Smoking Ordinance Implemented, April 2013 4. Informal Staff Report (2013 -058) update on compliance and future items for discussion, Aug. 2014. 5. Work Session discussion directing staff to revise Smoking Ordinance No. 2012 -367, Jan. 2015. EXHIBITS 1. City of Denton Ordinance 2012 -367 (current) 2. Proposed revisions to Ordinance No. 2012 -367 (clean copy) 3. Proposed revisions to Ordinance No. 2012 -367 (redlined copy) 4. EngageDenton.com survey results 5. Work Session PowerPoint presentation Respectfully submitted: Lindsey N. Baker Intergovernmental Relations /Public Information Officer City of Denton Page 2 of 2 Printed on 2/12/2015 s:llegal \our documents\ordinances \12 \smoking regulations ordinance (12 -18 lb).doc ORDINANCE NO. 2012 -367 AN ORDINANCE OF THE CITY OF DENTON, TEXAS DESIGNATING PORTIONS OF CERTAIN RETAIL ESTABLISHMENTS, PUBLIC BUILDINGS, AND FOOD ESTABLISHMENTS AS NONSMOKING AREAS; PROVIDING NOTIFICATION REQUIREMENTS; PROHIBITING SMOKING IN DESIGNATED NONSMOKING AREAS; PROVIDING EXCEPTIONS; PROVIDING PENALTIES; PROVIDING A SEVERABILITY CLAUSE, REPEALING ORDINANCE 86 -69, ORDINANCE 93 -193 AND CHAPTER 14 ARTICLE IV (SMOKING) OF THE CODE OF ORDINANCES, AND ANY OTHER ORDINANCE IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton recognizes that the smoking of tobacco, weeds or other plant products has been demonstrated to have a detrimental effect on not only the smoker but others in close proximity to the smoker; and WHEREAS, the City Council determined it to be in the public interest to consider the possibility of enhancing the City's smoking regulations; and WHEREAS, the City Council enlisted the assistance of an ad -hoc citizen's advisory committee to review smoking regulations in Denton; and WHEREAS, this committee met on October 11, October 25, November 15, and December 3, 2012; and WHEREAS, this committee has forwarded certain recommendations regarding smoking regulations to the City Council for consideration; and WHEREAS, the City Council is appreciative of the work of this committee, and finds it in the public interest to enact enhanced smoking regulations in the City of Denton; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Definitions. The following words, terms and phrases, when used in this ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Bar means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of alcoholic beverages for on- premises consumption. Billiard Hall means a place of amusement for which the chief purpose is providing the use of billiard/pool tables to the public. Bingo parlor means an establishment owned, operated, or administered by a person or entity s:llegal\our documents \ordinances \12\smoking regulations ordinance (12- 181b).doe licensed or permitted by the State of Texas pursuant to V.C.T.A., Occupations Code, Chapter 2001. Cigar Bar means an establishment used primarily for the sale of cigar, cigar - related products, and alcoholic beverages, and does not allow admittance to or employ persons under the age of eighteen (18). Employee means an individual in the service of another under a contract of hire, whether express or implied, or oral or written, for direct or indirect monetary wages or profit, or an individual who volunteers the individual's services for an employer. Employer means a person or entity who uses the services of another under a contract of hire, whether express or implied, or oral or written, or uses the volunteer services of one or more individuals. Facility means improvements of a vertical nature, including, but not limited to, buildings, sheds, garages, and stadium structures and excluding horizontal improvements such as sidewalks, streets and parking lots. Fraternal Organization means a non - profit organization that: (1) is tax exempt under Section 501(c)(8), (10), or (19) of the Internal Revenue Code; (2) operates under a lodge system with a representative form of government; and (3) is organized for the exclusive benefit of the members of the organization and their dependents. Healthcare Facility means an office or institution in which care or treatment is provided for physical, mental, or emotional diseases or other medical, physiological, or psychological conditions. Operator means the owner or person in charge of a public place or place of employment, including an employer. Open -aired Outdoor Patio means a patio that has no fencing surrounding the seating area of the patio, except for open -aired construction (such as wrought iron, slats, or lattice work), or fencing which would allow for more than 50 percent light and air penetration, or fences which do not exceed four (4) feet in height. Walls contiguous to the primary business are not deemed fencing within this definition. Ceilings of solid or open -aired construction (such as slats or lattice work) are permitted notwithstanding the requirement of 50 percent light and air penetration. Place of Employment means an enclosed facility under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction areas, and temporary offices. This definition does not include such outdoor areas as construction sites, parking lots, or designated smoking areas, or any area where smoking is specifically allowed under this ordinance. Page 2 of 6 sAlegal \our documents\ordinances\12\smoking regulations ordinance (12 -18 lb).doc Private Club means an organization that owns, leases, or occupies a building used exclusively for club purposes at all times and: (1) is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain; (2) sells alcoholic beverages only incidentally to its operation; (3) the affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting; (4) has established bylaws or a constitution to govern the club's activities; and (5) is exempt from federal income taxation under Section 501(a), Internal Revenue Code, as a club described by Section 501(c) (7) of that code. Public Place means an enclosed area the public is invited or allowed to enter. Restaurant means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of food for immediate consumption. The term includes a bar located within the establishment. Retail establishment means any establishment which primarily sells goods and /or services to the general public. Smoke /Smoking means to inhale, exhale, burn, or carry a lighted cigar, cigarette, pipe, or other smoking equipment, containing tobacco, weed, or other plant product. Tobacco Shop means a specialty retail establishment used primarily for the sale of tobacco products and accessories and in which the sale of other products is incidental. Tobacco Bar means a business that: (1) holds a permit under V.C.T.A., Tax Code, Chapter 155; and (2) holds an alcoholic beverage permit or license issued under V.C.T.A., Alcoholic Beverage Code, Chapters 25, 28, 32, or 69, or under V.C.T.A., Alcoholic Beverage Code, Section 11.10. SECTION 2. Smoking prohibited in certain public places. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product in any of the following public places: (1) An elevator used by the public; (2) Healthcare facilities; (3) Any facility owned, operated or managed by the city; (4) Any vehicle owned by or under the control of the city; Page 3 of 6 sAlegal \our documents\ordinances \l2 \smoking regulations ordinance (12 -18 lb).doc (5) Any retail establishment serving the general public except as otherwise permitted in this ordinance; (6) Lobbies, hallways, and other common areas in retirement facilities and nursing homes; (7) Any facility of a primary or secondary school; (8) Child care and adult day care facilities; (9) A privately owned theater auditorium, movie house, or other enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, stage drama, musical recital, athletic event, or any other performance or event; (10) Public libraries, including exterior corridors, and any area within 30 feet of any public entrance; (11) Museums; (12) Restaurants; (13) Bars, except as otherwise permitted in this ordinance; (t 4) Lobbies, hallways, and other indoor public areas in hotels and motels; (15) Bowling alleys (16) Pool /billiard halls; (17) Polling places; (18) Bingo Parlors, except as otherwise permitted in this ordinance; (19) Public transportation vehicles, including buses and trains, and within thirty (30) feet of facilities in support of public transportation such as ticket, boarding, shelter, and waiting areas; and (20) Any establishment or facility declared to be non - smoking under Section 4(b) of this ordinance. SECTION 3. Smoking prohibited in places of employment. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product in places of employment, except as provided in this ordinance. (b) An employer shall communicate this prohibition to all prospective employees upon their application for employment. SECTION 4. Smoking not prohibited in certain places. (a) Notwithstanding any other provision of this ordinance, the following areas shall not be Page 4 of 6 s:llegal \our documents \ordinances\12 \smoking regulations ordinance (12 -18 lb).doc subject to the smoking restrictions of this ordinance: (1) Private residences, except when used as a child care, adult day care, or health care facility; (2) Personal vehicles; (3) Private clubs and fraternal organizations; (4) Open -aired outdoor patio of a restaurant or bar; (5) A bar that does not employ, or allow admittance to, persons under the age of eighteen (18) years, or which is permitted to sell tobacco products pursuant to V.T.C.A., Health and Safety Code Section 161.086; (6) Bingo Parlors which provide a solid physical barrier to separate the non - smoking section. Any existing bingo parlors shall have three (3) years from the effective date of this ordinance to construct such barrier; and (7) Tobacco shops, tobacco bars, and cigar bars. (b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section, may declare the entire establishment or facility as a nonsmoking establishment by posting the establishment or facility as such pursuant to Section 5 of this ordinance. SECTION 5. Signage. (a) The owner or person in control of an establishment in which smoking is prohibited by this ordinance shall: (1) Post a conspicuous sign at the main entrance to the establishment that shall contain the words "No Smoking, by City of Denton Ordinance" and which includes the universal symbol for no smoking, or other language that clearly prohibits smoking; and (2) Remove all ashtrays from any area in which smoking is prohibited. SECTION 6. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 7. Penalties. Any person violating this ordinance shall, upon conviction, be punished by a fine not to exceed Two Thousand Dollars ($2,000.00). SECTION 8. Ordinance 86 -69, Ordinance 93 -193, Chapter 14 Article IV (Smoking) of the Code of Ordinances, and any other ordinance in conflict herewith are hereby repealed. Page 5 of 6 sAlegal\our documents \ordinances \12 \smoking regulations ordinance (12 -18 lb).doc SECTION 9. This ordinance shall become effective one - hundred twenty (120) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of �e��f> 2012. MARK A. BURRWGRS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPR D A TO LEGAL FORM: ANITA URGESS, CITY ATTORNEY BY: Page 6 of 6 C: \granicus \legistar5 \L5 \Temp \c299873d- e7b5- 4b46- b734- 39f60a6ed18a.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING, IN ITS ENTIRETY, ORDINANCE NUMBER 2012 -367; INCLUDING ELECTRONIC CIGARETTES IN THE DEFINITION OF SMOKING; PROHIBITING SMOKING IN CERTAIN RETAIL ESTABLISHMENTS, PUBLIC BUILDINGS, AND FOOD AND BEVERAGE ESTABLISHMENTS; ESTABLISHING NONSMOKING AREAS; PROVIDING NOTIFICATION REQUIREMENTS; PROHIBITING SMOKING IN DESIGNATED NONSMOKING AREAS; PROVIDING EXCEPTIONS; DELETING OBSOLETE PROVISIONS; PROVIDING PENALTIES; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton ADOPTED Ordinance Number 2012 -367 which recognized that the smoking of tobacco, weeds or other plant products has been demonstrated to have a detrimental effect on not only the smoker but others in close proximity to the smoker and which established regulations governing smoking in the City of Denton; and WHEREAS, upon further review, the City Council of the City of Denton has determined that it is the best interest of the citizens of the City of Denton to adopt additional regulations governing in the City and expanding the said regulations to include vapor products within the definition of smoking; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance number 2012 -367 is hereby amended in its entirety and henceforth shall read as follows: Definitions. The following words, terms and phrases, when used in this ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Bar means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of alcoholic beverages for on- premises consumption. Billiard Hall means a place of amusement for which the chief purpose is providing the use of billiard /pool tables to the public. Bingo parlor means an establishment owned, operated, or administered by a person or entity licensed or permitted by the State of Texas pursuant to V.C.T.A., Occupations Code, Chapter 2001. Cigar Bar means an establishment used primarily for the sale of cigar, cigar- related products, and alcoholic beverages, and does not allow admittance to or employ persons under the age of eighteen (18). Electronic Cigarette (e- cigarette) means any electronic oral device, such as one composed of a heating element, battery, and /or electronic circuit, which provides a vapor or aerosol of nicotine or any other substance, and the use or inhalation which stimulates the smoking of a tobacco cigarette, pipe or cigar. "Electronic cigarette" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, and electronic cigar, an electronic cigarillo, an electronic pipe, electronic hookah, or under any other similar produce name or descriptor. The term electronic cigarette does not include any asthma inhaler or other similar device that has been duly prescribed by a licensed physician. Employee means an individual in the service of another under a contract of hire, whether express or implied, or oral or written, for direct or indirect monetary wages or profit, or an individual who volunteers the individual's services for an employer. Einployer means a person or entity who uses the services of another under a contract of hire, whether express or implied, or oral or written, or uses the volunteer services of one or more individuals. Facility means improvements of a vertical nature, including, but not limited to, buildings, sheds, garages, and stadium structures and excluding horizontal improvements such as sidewalks, streets and parking lots. Fraternal Organization means a non - profit organization that: (1) is tax exempt under Section 501(c)(8), (10), or (19) of the Internal Revenue Code; (2) operates under a lodge system with a representative form of government; and (3) is organized for the exclusive benefit of the members of the organization and their dependents. Healthcare Facility means an office or institution in which care or treatment is provided for physical, mental, or emotional diseases or other medical, physiological, or psychological conditions. Operator means the owner or person in charge of a public place or place of employment, including an employer. Open- aired Outdoor Patio means a patio that has no fencing surrounding the seating area of the patio, except for open -aired construction (such as wrought iron, slats, or lattice work), or fencing which would allow for more than 50 percent light and air penetration, or fences which do not exceed four (4) feet in height. Walls contiguous to the primary business are not deemed fencing within this definition. Ceilings of solid or open -aired construction (such as slats or lattice work) are permitted notwithstanding the requirement of 50 percent light and air penetration. Place of Einployinent means an enclosed facility under the control of a public or private Page 2 of 6 employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction areas, and temporary offices. This definition does not include such outdoor areas as construction sites, parking lots, or designated smoking areas, or any area where smoking is specifically allowed under this ordinance. Private Club means an organization that owns, leases, or occupies a building used exclusively for club purposes at all times and: (1) is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain; (2) sells alcoholic beverages only incidentally to its operation; (3) the affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting; (4) has established bylaws or a constitution to govern the club's activities; and (5) is exempt from federal income taxation under Section 501(a), Internal Revenue Code, as a club described by Section 501(c) (7) of that code. Public Place means an enclosed area the public is invited or allowed to enter. Restaurant means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of food for immediate consumption. The term includes a bar located within the establishment. Retail establishment means any establishment which primarily sells goods and /or services to the general public. Smoke /Smoking means to inhale, exhale, burn, or carry a lighted cigar, cigarette, pipe, or other smoking equipment, containing tobacco, weed, or other plant product or the use of an electronic cigarette or similar device. Tobacco Bar means a business that: (1) holds a permit under V.C.T.A., Tax Code, Chapter 155; and (2) holds an alcoholic beverage permit or license issued under V.C.T.A., Alcoholic Beverage Code, Chapters 25, 28, 32, or 69, or under V.C.T.A., Alcoholic Beverage Code, Section 11.10. Tobacco Shop means a specialty retail establishment used primarily for the sale of tobacco products and accessories and in which the sale of other products is incidental. SECTION 2. Smoking prohibited in certain public places. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product or e- cigarette in any of the following public places: Page 3 of 6 (1) An elevator used by the public; (2) Healthcare facilities; (3) Any facility owned, operated or managed by the city; (4) Any vehicle owned by or under the control of the city; (5) Any retail establishment serving the general public except as otherwise permitted in this ordinance; (6) Lobbies, hallways, and other common areas in retirement facilities and nursing homes; (7) Any facility of a primary or secondary school; (8) Child care and adult day care facilities; (9) A privately owned theater auditorium, movie house, or other enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, stage drama, musical recital, athletic event, or any other performance or event; (10) Parks facilities and public libraries, including exterior corridors, and any area within 30 feet of any public entrance thereto ; (11) Museums; (12) Restaurants; (13) Bars; (14) Lobbies, hallways, and other indoor public areas in hotels and motels; (15) Bowling alleys (16) Pool/billiard halls; (17) Polling places; (18) Bingo Parlors; (19) Public transportation vehicles, including buses and trains, and within thirty (30) feet of facilities in support of public transportation such as ticket, boarding, shelter, and waiting areas; and (20) Any establishment or facility declared to be non - smoking under Section 4(b) of this ordinance. (21) Any location which is within thirty (30) feet of an entrance to a location in which smoking is prohibited, provided however that it shall be a defense to prosecution that the said location is within the "DOWNTOWN IMPLEMENTATION AREA." Page 4 of 6 SECTION 3. Smoking prohibited in places of employment. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product or e- cigarette in places of employment, except as provided in this ordinance. (b) An employer shall communicate this prohibition to all prospective employees upon their application for employment. SECTION 4. Smoking not prohibited in certain places. (a) Notwithstanding any other provision of this ordinance, the following areas shall not be subject to the smoking restrictions of this ordinance: (1) Private residences, except when used as a child care, adult day care, or health care facility; (2) Personal vehicles; (3) Private clubs and fraternal organizations; (4) Open -aired outdoor patio of a restaurant or bar; (5) Tobacco shops, tobacco bars, and cigar bars. (b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section, may declare the entire establishment or facility as a nonsmoking establishment by posting the establishment or facility as such pursuant to Section 6 of this ordinance. SECTION 5. Sale of Electronic Cigarettes or Liquid Nicotine to Persons Younger than 18 years of Age Prohibited. A person commits an offense if the person: (1) Sells, gives or causes to be sold or given an electronic cigarette or liquid nicotine to someone who is younger than 18 years of age; or (2) Sells, gives or causes to be sold or given an electronic cigarette or liquid nicotine to another person who intends to deliver it to someone who is younger than 18 years of age. SECTION 6. Signage. (a) The owner or person in control of an establishment in which smoking is prohibited by this ordinance shall: (1) Post a conspicuous sign at the main entrance to the establishment that shall contain the words "No Smoking, by City of Denton Ordinance" and which includes the universal symbol for no smoking, or other language that clearly prohibits smoking; and Page 5 of 6 (2) Remove all ashtrays from any area in which smoking is prohibited. SECTION 6. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 7. Penalties. Any person violating this ordinance shall, upon conviction, be punished by a fine not to exceed Two Thousand Dollars ($2,000.00). SECTION 8. This ordinance shall become effective one - hundred twenty (120) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record- Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CHRIS WATTS, MAYOR Page 6 of 6 C:\granicus \legista r5 \l5\ Temp\ 1eb95433- 14f3- 4e20- 9b5e- 29796ad51c45.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING IN ITS ENTIRETY. ORDINANCE NIJMBER 2012 -367- INCI:IJDING Ep,ECTRCiNIC CIGARI TIES IN THE DEFINITION OF' SMOKING rtia �r�nra rTnrr: r3r�r� rrr� ��}I'IL()I- III3I1TNC SMOKING IN CERTAIN RETAIL ESTABLISHMENTS, PUBLIC BUILDINGS, AND FOOD AND BE.VE.RAGE. ESTABLISHMENTS ESTABLISHING AS---- NONSMOKING AREAS; PROVIDING NOTIFICATION REQUIREMENTS; PROHIBITING SMOKING IN DESIGNATED NONSMOKING AREAS; PROVIDING EXCEPTIONS; DE.LE.TING OBSOLETE PROVISIGNS- PROVIDING PENALTIES; PROVIDING A SEVERABILITY CLAUSE, rra,I'I nr rnrr: r�rrrtir \rn nra E, a 69, E;PtIINANC$ 1�3' AAFIa'�rnr�r'II�14 R44 dz^ NC4° , IN (,' 144 44�RE`��T -IL; AND PROVIDING FOR AN EFFECTIVE DATE. 9 -. &,.,..' I '-cir°eic'i ,is"tr- c�."-ia.- tcc.,• f�i-.�rrr" ¢cH- +card'..= .,- rrr'r`�rc�x —z, atCar �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- �- },4 -�'e THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance number 2,012, -367 is hereby atnendecl in its entirety and henceforth shall read as follows: Definitions The following words, terms and phrases, when used in this ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Bar means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of alcoholic beverages for on- premises consumption. Billiard Hall means a place of amusement for which the chief purpose is providing the use of billiard /pool tables to the public. Bingo parlor means an establishment owned, operated, or administered by a person or entity licensed or permitted by the State of Texas pursuant to V.C.T.A., Occupations Code, Chapter 2001. Cigar Bar means an establishment used primarily for the sale of cigar, cigar- related products, and alcoholic beverages, and does not allow admittance to or employ persons under the age of eighteen (18). E /eclr °anrc 6'r „ <xr °c,ttc} (e- cr�;ar °ette) means any electronic oral device. such. as one cotnposecl of a heating element. battery, and /or electronic circuit. which provides a vapor or aerosol of nicotine or an other substance. and the use or inhalation which stimulates the smokin Y of a tobacco cigarette . pipe or cigar. "Electronic cigarette” includes any such device. whether manufactured. distributed. marlcetecl. or sole( as an electronic cigarette. and electronic cii gar. an electronic cigarillo. an electronic pipe., electronic hookah, or under any other similar produce name or descriptor. The term electronic cigarette does not include any asthma inhaler or other similar device that has been duly prescribe(. by a licensed physician. Employee means an individual in the service of another under a contract of hire, whether express or implied, or oral or written, for direct or indirect monetary wages or profit, or an individual who volunteers the individual's services for an employer. Employer means a person or entity who uses the services of another under a contract of hire, whether express or implied, or oral or written, or uses the volunteer services of one or more individuals. Facility means improvements of a vertical nature, including, but not limited to, buildings, sheds, garages, and stadium structures and excluding horizontal improvements such as sidewalks, streets and parking lots. Fraternal Organization means a non - profit organization that Page 2 of 7 �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- �- },4 -�'e (1) is tax exempt under Section 501(c)(8), (10), or (19) of the Internal Revenue Code; (2) operates under a lodge system with a representative form of government; and (3) is organized for the exclusive benefit of the members of the organization and their dependents. Healthcare Facility means an office or institution in which care or treatment is provided for physical, mental, or emotional diseases or other medical, physiological, or psychological conditions. Operator means the owner or person in charge of a public place or place of employment, including an employer. Open -aired Outdoor Patio means a patio that has no fencing surrounding the seating area of the patio, except for open -aired construction (such as wrought iron, slats, or lattice work), or fencing which would allow for more than 50 percent light and air penetration, or fences which do not exceed four (4) feet in height. Walls contiguous to the primary business are not deemed fencing within this definition. Ceilings of solid or open -aired construction (such as slats or lattice work) are permitted notwithstanding the requirement of 50 percent light and air penetration. Place of Dnplo7 anent means an enclosed facility under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction areas, and temporary offices. This definition does not include such outdoor areas as construction sites, parking lots, or designated smoking areas, or any area where smoking is specifically allowed under this ordinance. Private Club means an organization that owns, leases, or occupies a building used exclusively for club purposes at all times and: (1) is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain; (2) sells alcoholic beverages only incidentally to its operation; (3) the affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting; (4) has established bylaws or a constitution to govern the club's activities; and (5) is exempt from federal income taxation under Section 501(a), Internal Revenue Code, as a club described by Section 501(c) (7) of that code. Public Place means an enclosed area the public is invited or allowed to enter. Restaurant means an enclosed indoor establishment that is open to the public and is devoted primarily to the sale and service of food for immediate consumption. The term includes a bar located within the establishment. Page 3 of 7 �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- �- },4 -�'e Retail establishment means any establishment which primarily sells goods and /or services to the general public. Smoke /Smoking means to inhale, exhale, bum, or carry a lighted cigar, cigarette, pipe, or other smoking equipment, containing tobacco, weed, or other plant product or the use of an electronic cigarette or similar device. Tobacco Bar means a business that: (1) holds apermit under V.C.T.A., Tax Code, Chapter 155; and (2) holds an alcoholic beverage permit or license issued under V.C.T.A., Alcoholic Beverage Code, Chapters 25, 28, 32, or 69, or under V.C.T.A., Alcoholic Beverage Code, Section 11.10. Tobacco Shop means a specialty retail establishment used primarily for the sale of tobacco products and accessories and in which the sale of other products is incidental. SECTION 2. Smoking prohibited in certain public places. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product or e- cigarette in any of the following public places: (1) An elevator used by the public; (2) Healthcare facilities; (3) Any facility owned, operated or managed by the city; (4) Any vehicle owned by or under the control of the city; (5) Any retail establishment serving the general public except as otherwise permitted in this ordinance; (6) Lobbies, hallways, and other common areas in retirement facilities and nursing homes; (7) Any facility of a primary or secondary school; (8) Child care and adult day care facilities; (9) A privately owned theater auditorium, movie house, or other enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, stage drama, musical recital, athletic event, or any other performance or event; (10) Park; facilities; andl)ublic libraries. including exterior corridors. and any area within 30 feet of an�nublic entrance thereto ' �." ^�„ "^ �' °r?^ ti ,�n 9 --a (11) Museums; Page 4 of 7 �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- �- },4 -�'e (12) Restaurants; (13) Bars; -Lx .,°r (14) Lobbies, hallways, and other indoor public areas in hotels and motels; (15) Bowling alleys (16) Pool/billiard halls; (17) Polling places; (18) Bingo Parlors e- ° ^* (19) Public transportation vehicles, including buses and trains, and within thirty (30) feet of facilities in support of public transportation such as ticket, boarding, shelter, and waiting areas; and 2( 0) Any establishment or facility declared to be non - smoking under Section 4(b) of this ordinance. P�4(2 1) Any location which is within thrty(30) feet of an entrance to a location in which smoking is prohibited. provided hcswever that it shall be a defense to prosecution that the said location is within the "DOWNTOWN IMPLEMENTATION AREA" SECTION 3. Smoking prohibited in places of employment. (a) It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product or e- cigarette in places of employment, except as provided in this ordinance. (b) An employer shall communicate this prohibition to all prospective employees upon their application for employment. SECTION 4. Smoking not prohibited in certain places. (a) Notwithstanding any other provision of this ordinance, the following areas shall not be subject to the smoking restrictions of this ordinance: (1) Private residences, except when used as a child care, adult day care, or health care facility; (2) Personal vehicles; (3) Private clubs and fraternal organizations; (4) Open -aired outdoor patio of a restaurant or bar; c -r6TTC v Page 5 of 7 �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- (�- 1- 1;-�'e Formatted: Tab stops: 1.04 ", Left f.- Hf- t�ti+.+-{- 3t�i33��h�- �t+3- EE§3:�ti- !rli�iiri'rizirit; zrrd . ¢% Tobacco shops, tobacco bars, and cigar bars. (b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility described in this section, may declare the entire establishment or facility as a nonsmoking establishment by posting the establishment or facility as such pursuant to Section 46 of this ordinance. SECTION 5. Sale of e lectronic C arettes or 1,iquicl Nicotine to Persons Youn er that 18 years of e Prohibited. A person cotntnts an offs nse if the person: (1) Sells, Lives or causes to be sold or Liven an electronic ci arette or liquid nicotine to (2,) Sells. gives or causes to be olcl or given an electronic cigarette or liquid nicotine to another person who intends to deliver it to someone who is ounger than 18 years of SECTION 46. Signage. (a) The owner or person in control of an establishment in which smoking is prohibited by this ordinance shall: (1) Post a conspicuous sign at the main entrance to the establishment that shall contain the words "No Smoking, by City of Denton Ordinance" and which includes the universal symbol for no smoking, or other language that clearly prohibits smoking; and (2) Remove all ashtrays from any area in which smoking is prohibited. SECTION 6. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 7. Penalties. Any person violating this ordinance shall, upon conviction, be punished by a fine not to exceed Two Thousand Dollars ($2,000.00). SECTION .98. This ordinance shall become effective one - hundred twenty (120) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Page 6 of 7 Formatted: Indent: Left: 0.44 ", Numbered + Level: 1 + Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment: Left + Aligned at: 0.35' + Indent at: 0.6" Formatted: Font: Bold �legel\ �er� §Hexrriettt�kat�kx��tr= e��k -2-�s ,. .. : wee- �- },4 -�'e ordinance to be published twice in the Denton Record - Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of 2012:5. MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY C 444R44 nr?.RR444444CITRIS WATTS, Page 7 of 7 WIDYMN Managemeni: RelporLs I )ashlooard 7;77r,,7, ::1arl:icjjpanl:s Ideas IOITMVM Wd � Ime ��to E ri gage RqII r VIII lrig lhrwWrface � N) IRepoirfliiig IIlinteurffece disphys afll of tlN) acbMty froin your proO)ct I% irnokiki iin Wi"I siiginated distaince frairn pul u Hic eintrainces r: ?esults WoUd you IIII l Ike ° o Giy IIIV an &dklhnW� �CNI in a des IIIgnated d�stance firarn pWNHt eirvbrances? EM an Ei igagei nei it )1::::1"All S Foll FyIpe 111 11111 Days I live Participai its �MAI G�bsed Status 11,102 Fla rticipainits / V1 F)" III I IIIl IIIl 11,10 initeractoins Comments 111101111 3 Voles Shares �llll 52' 65% 35% Male F el a 11 e i McGinnis Wobsi[e Adininish a [or 0IIC � IICs Gi OS�11111]") G�: Cs S I, I I c) elII, a I I, 1� hi 111 "1 I iz,� 1� e (,,.kisi�an e ftomn u hi e Iii 1 L Iii s http://www.engagedenton.com/Reports/Overview 1/2 WIDYMN 18.3% 25.6% 18.3% 23.2% 14.6% 0% 0% 14,17 '13.., 4 25 34 ;3..44 45 54 55 64 65 IOITMVM 0 AI C, 0 ) 1 76201 16 7% 76209 16 7% 76207 9 9 8% 762,10 3 3.8 % Deimogralphic iilntolrl matoini imay iniol The provided oini 100% of Ipartiiciilpaints. I )asl dij oa I d I I a I I I r, IOjpo I[ I I "a I I I cip a I I[ Ove, I view I I la 1 [1(', 1 p a r I I I �Ojpo I[ I I doa Ove IV I ow I I doa Repo I I Select Language I lowered I)y Go ik 11 "anshite http://www.engagedenton.com/Reports/Overview 2/2 2/10/2015 Overview a sh Ilo oa rc�i 7;7 7v,,v,,7, 1::::Ia rLicillp a ii il:s Ideas Imo Yes i igagei nei it )1 All S Foil FyIpe 111 11111 Days i. live Participai its 0 Al G�bsed Status 86 Fla rticipainits AC, � V1 F)" 811117 Interactions 85 Voles G 1:::: 11,111, ) 1: 111171,11% Male i McGinnis Wobsi[e Adininish a [or 0111' °''VIICs 2 Comments 41, Shar11es 29% F e im a 11 e http://www.engagedenton.com/Reports/Overview 1/2 WIDYMN 21.9% 28.1% 21.9% 14. 1 % 14. 1 % 0% 0% 14,17 '18.., 4 25 34 ;5..44 45 54 55 64 65 Overview 0 AI C, 0 ) 1 76201 15 1 % 76209 15 1 % 76205 1 0 5% 76207 9 3% 762,10 76208 3.3 /0 75065 3.5% 75028 2. 3% 75067 2 3% Of 020 1 2% Deirnoqralphic iilntolrl matoini imay iniol The Iproviided oini 100% of Ipartiiciilpaints. I )asl dij oa I d I I a I I I r, IOjpo I[ I I "a I I I cip a I I[ Ove, I view I I la 1 [1(', 1 p a r I I I �Ojpo I[ I I doa Ove IV I ow I I doa Repo I I Select Language I lowered I)y Go ik 11 "anshite http://www.engagedenton.com/Reports/Overview 2/2 WIDYMN IOITMVM Exteind S'Iok�king ���13ain "to sltaind4laine lbars esults Are you liii in favar of extend ire g the cwnrervt iu IIII li iiin IIIV ire ��to star IIane IIIV lit s? EM an Ei igagei nei it )1::::T'All S Foll FyIpe 111 11111 Days I live Participai its ''M AI G�bsed Status 111179 Fla rticipainits 24 AC, � V1 F)" 111179 1111 initeractoins Comments 111178 0 Voles Shares i McGinnis Wobsi[e Adininish a [or 0III °''� ICs http://www.engagedenton.com/Reports/Overview 1/2 111174,111% 26% Male F e im a 11 e i McGinnis Wobsi[e Adininish a [or 0III °''� ICs http://www.engagedenton.com/Reports/Overview 1/2 WIDYMN 24.6% 27.9% 4.8% 21.3% 1 11.5% 0% 0% 14,17 '18.., 4 25 34 ;5..44 45 54 55 64 65 Overview 0 AI C, 0 ) 1 76201 15 2% 76209 15 2% 76207 10 1 % 76205 8 9% 76208 "1 6% 762,10 "1 6% 75065 3 8% 75028 2 5% 75067 2 5% Of 020 1 3% Deirnoqralphic iilntolrl matoini imay iniol The Iproviided oini 100% of Ipartiiciilpaints. I )asl dij oa I d I I a I I I r, IOjpo I[ I I "a I I I cip a I I[ Ove, I view I I la 1 [1(', 1 p a r I I I �Ojpo I[ I I doa Ove IV I ow I I doa Repo I I Select Language I lowered I)y Go ik 11 "anshite http://www.engagedenton.com/Reports/Overview 2/2 {�- r��l/ I+f11/1i rr i 1'�um�"" �UI � r� 11,,,�,��,;, �,,, r ! �,,, I' �,11 , � �,rt 1 iii Il ime (Ilinstaint Poll): IIE -viii gairettes IRIMMMMIM, Number of Comments 2 d e R Comment 1: Ban e-cigs. SO tired of getting a face full of scented vapor from the e-cig smokers in bars and restaurants. Enough. I By Susan S d e R .... ... . . 1 iii Il ime (Ilinstaint Poll): Il tein it m lld ii Il in to sta iii d-a III oine 11b airs AWWROhIm, Number of Comments 1 Comment 1: YES. All bars in Denton should be non-smoking. Most bars are staffed by college kids from UNT and TWU, and asking them to breathe second hand smoke in order to work is just plain wrong. I By Susan S W 170 d e R .... ... . . 1 iii Il ime (Ilinstaint Poll): ii m lld ii Il in with iii in a des iii ginated d iii staince firom pulIb Ill iii c eintrainces DIMMKORM 103 � , Number of Comments 10 Comment 2: 1 think that a regulation like this clearly has merit, especially when people with asthma or other respiratory illnesses are taken into account, and I know that UNT is much more walkable now that smoking has been banned. I think that it is important to attach the minimum distance from entrances to somethinnglanniLl% such as the a W-,-,roximate amount of distanced needed to allow the smoke to dissipate plus some room for error. I By Pat H Comment 4: Give smokers a designated place to smoke & nearly all of them will go there. A ,2diLJS QrOUnd every door seetis to be—,Q bit-tauch in Q, SitLjQtion like the SQUQre where tj Comment 5: How about adding cigarette butt containers next to the existing recycling/trash cans? I have to agree with other commenters that 15-25 ft setback is a hardship for existing downtown businesses, but especially bars and restaurants. And I am a life-long non-smoker who is allergic to cigarette smoke. This proposed regulation is not necessary. I By Christie W d "6 R .... ... . . Comment 6: We already have cigarette containers next to the recycle cans. They work great. I By Andy B Comment 7: Regardless of how you feel about smoking, this approach is illogical. I'd like to see where one can smoke under this proposal (15-25 ft. from all public entrances on the Square.) - like nowhere or maybe in the middle of the street. At some point, one has to simply encourage people to be more considerate by ... wait for it ... being more considerate. I By Brendan C Comment 8: 1 have to agree with Steve, it is not the Governments business to interfere with your efforts on infrastructure and maintenance and leave the private sector alone! I By Tony F Comment 10: Those who voted not to ban smoking within 15-25 ft from entrances must be smokers. Those of us who chose to breathe and not smoke would like to be able to walk into and out of a building without having to breathe your smoke or smell like smoke once we have to walk through it. I By Victoria H WA s O N i O N 1 1 G N N i O c� L s rt 0 N N N i Q L s • • • 1 1 A V L V O u ,a, mimmu iiiiiiiiiiiiiiiiiiiiiiiiiiin iiiiiiiiiiiiiiiiiiiiiiiiiiin m mi00000000i lim0000000m 0 mmm.0 mw ". mmm.0 m m 0 N i O a V O O E N i O i 4- s O 4� N V W N -1- V y— O -- L V 0 Cie �1- O 4- O O M S 4— V i L 4- i V D 0- %4- O O O M S 4— 3 3 0 O 0 4- O V W `o `a L a a o c Q m N i O a V O O E N i O i 4- s O 4� N V W N -1- V y— O -- L V 0 Cie �1- O 4- O O M S 4— V i L 4- i V D 0- %4- O O O M S 4— 3 3 0 O 0 4- O V W IN mimmu mimmu i0000000000000m Emilloup mmm.0 Cl um mmm.0 m m 0 i O .- 4— O Z N V N L L N �V N L JII N L L y— N V L roe� L N tee L L N L L V N L O V N S N V H c 0 10 Q Z oouuo Q � W i0000000000000i� s uuuuuuuuuuuuuuum � N L L mimmu V 0 71 c 0 4- ( ��� .E N m CV- V) V 0 N 0 V c� L, 1, C: 10 0 Z Q � s i � V c� L, 1, II IW11W1W II IW11W1W I IW11 III II III II IW11W1W lllllllllllmlllllllllllll IIIIIIIIIIIIIIIIIIIIIIIII IIIIIIIIII II IIIIIIIIIIIIIIIIIII IImO��lllll IIIIYtlWWW 1111111 lllllllllllmllllllllllllllll IIIIIIIIIIIIIIIIIII IImO��lllll 11�41W111 11�41W1 IW11W11 M. V 4- N 4- i i wwwlpl �� \) N kilo 0 � LU p m """ N wmumuo CO tr tA LU %////j%j fee • • • • • • • • wmumuo tr tA LU I "I 00 �wu�uu muuuuuuuuuuuuuuuuum L V �vuu�vuu�vuu� � , � #1 � �• ® �\ \� �� V III FMPSJ No 9 a- V O O � Q L-1- O � N N C'7 O ♦- V - s mimmu V V 0 L .- L IMMINIMINI i IU oou�u�o O u, v V V III FMPSJ No 9 a- V O City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: S115 -0004, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning & Development CM/ ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Receive a report, hold a discussion and give staff direction regarding an ordinance to adopt the 2012 International Building Code (IBC), the 2012 International Residential Code (IRC), the 2012 International Plumbing Code (IPC), the 2012 International Mechanical Code (IMC), and the 2012 International Fuel Gas Code (IFGC) as amended by the City. BACKGROUND The current 2009 building codes, as amended, were adopted on September 11, 2012. The 2012 International Codes were published by the International Code Council (ICC) in the first quarter of 2012. Upon publication, the various building code boards of the North Central Texas Council of Governments (COG) reviewed the Codes during the 13 month time frame from February of 2012 through March of 2013. The COG amendments were then published to the municipalities within this 16- county North Central Texas region in April of 2013 for consideration of adoption. The City of Denton Building Inspections staff began reviewing the COG amendments in the first quarter of 2014 anticipating adopting the code in early 2015. Our internal review of the amendments was completed in late September of 2014. On November 12, 2014, the amended 2012 International Building Codes were presented to approximately 80 area professionals including builders, contractors, plumbers, mechanical contractors, architects, and engineers. The presentation highlighted the most significant changes from the 2009 Codes to the 2012 version of the Building Codes, which were received well by the attendants. The proposed 2012 Building Codes and the proposed amendments were then posted on the Building Inspections webpage. On November 20, 2014 the draft ordinance of the 2012 Building Codes was presented to the Health and Building Standards Commission (HaBSCo) along with the presentation given to the contractors. The HaBSCo commissioners voted 6 -1 to recommend adoption. OPTIONS 1. Request more information about the 2012 Building Codes City of Denton Page 1 of 2 Printed on 2/12/2015 File #: S115 -0004, Version: 2. Postpone consideration 3. Table item for future consideration RECOMMENDATION Staff recommends that the City Council adopt the 2012 International Building Code, Residential Code, Plumbing Code, Mechanical Code, and the Fuel Gas Code along with staff recommended amendments. FISCAL INFORMATION Staff does not anticipate any fiscal impact as a result of adopting this code. F,XHIRITS Modified Power Point Presented to Contractors and HaBSCo 2. The Proposed 2012 Building Code adoption ordinance Respectfully submitted: Brian Lockley, AICP, CPM Director of Planning and Development Prepared by: Rodney Patterson Interim Building Official City of Denton Page 2 of 2 Printed on 2/12/2015 �c W 0 sum 0 0 0 0 0 0 0 r. c� X c� a� u s i O Z V O u u Z LA E a� O V 4- O u O u a� O u u O 4 Em Is cd QV ce ca CIO Im O V m o .0 +-J � u w uj c� O m LZ la cd .0 cd s u (3) ca 4 LA (3) L ; P wm u O � s � u O cd � .0 O 0 4 - E a� u cd s a� u u O s � O a� O .0 a� L a� a� s O u a� a� cd s u a� i O u 0 �s a� a� u cd a� 0 a� 0 s u a� s 0 cd a� a� u cd a� > s O O u c: E ft y- u u O s � O a� O .0 a� L a� a� s O u a� a� cd s u a� i O u 0 �s a� a� u cd a� 0 a� 0 s u a� s 0 cd a� a� u cd a� 0-11-111 Wall wl"[� . - s(1)O 4-' 4- s a� a� m N Ul C)7 N •- '- vl d" V Un 4-J o NIFAWAFAVA >•� O '- '4_ n 4-J; r s • I, zww%� woc O Q �h V) y. dl a-+ O 4-J O O y— Q ,� cn � x JC a� 4%� rs C: 4-J — u Ln v rU cat 4-J O • � s �-+ p E u '•�_ a� � -J � u ZI E o U EO > 4-' p `'- O •— u .,_, vi u a) > O � O ��� � aJ O M vs s to c� O 0 O O c� O v c� u O � v � V E O u > rd O 1 O u _ _O O }, O v O vi �1 ni • — `~ vi CU `� c� O 0 cz 4 O �1 .0 N E O .0 4mi ,p V O N rz C co V) 0 •� m n � O o •• o � � rnn c: � O� 45 N O Q �� p r- wr_ to c� O 0 O O c� O v c� u in .O V X W • • . o o Lon U- 4.Q" O m m otzl) �0- �rz ZZ Ln C V� i vi Ln O O 4%, Q1 i O 0 O Q u O O u W m O V O O a� O cr c� O O vi O O u E N ce N O O L- C) ; I j, �r I t ,r k O �O N O 4-J cn E 0 c: -> 0 Q.0�t/1 0 -0 rci OHO Ln v� V) >4— CD . -WNcn0 .0 ..-, rci cn Ln Jc: u X 0-§ Oa� rz • • • • • • • • • ' • • • • •� • • • • • • • • • • a-0 .X N E E .X m E N H Lm V co LL 0 0 N N (6 O TM r V� C I LL c L T� `V c N y- O O O O -c I L � E O E E or*-- o4-0 O N ^0 W U) N 'c: v) C _0 '4) o O � O O U) N O 0 0 E A ILI E E .E N H i t NVI U) N- O O O U N NI O U 4-0 m E O c� c� cyi ci O m O U N }0 O'� � U O C: 0- Co -00 N U Ca c: N E N U)I U) V �n C: L- N C� C� y- y mmo tQ tQ i C;) 2 S= N . mom= MMOr N . mom= O n ,O V y 0 m mom= tQ t0 0 y V O a-0 .X N E E .X m E N H Lm V co LL 0 0 N N (6 O TM r V� C I LL c L T� `V c N y- O O O O -c I L � E O E E or*-- o4-0 O N ^0 W U) N 'c: v) C _0 '4) o O � O O U) N O 0 0 E A ILI E E .E N H i t NVI U) N- O O O U N NI O U 4-0 m E O c� c� cyi ci O m O U N }0 O'� � U O C: 0- Co -00 N U Ca c: N E N U)I U) V �n C: L- N C� C� y- wl"[� ., W 0 W s � E� 0 C o .0 O ZZ � � V Ln I j, U t L�J �16 • O a-+ • ..,-Imff. c O V V) L ri .0 L Q�J QQJ QJ QJ QJ � � I O O cl s � O O s s= C: t 0 �� ,, rz Qj > O O Q Qj CL V v c� LA Qj ZZ Oi s N a'' V u O Q O V,J .rZ Q� �C � N i O � � u � � X w �v > ZI Q �- SZ 4-+ c� Q M u u O M � � O s Q O � u O O n s m > C oC C a- 0 O 4- V u u s=ss X 4—+ + LLJ 4mJ � s c O cn Z � � c O d-s c I j, I c . O ._ — cTS 4-+ � V a� > M M O O N N O 4-+ E •O Ln O . _ 4-J CP — s ' S u O s �s > ins •''"' N 07-0 -0 U a� O 0 07 Z o- W " uj E IE 0 .C: / \ E .0 4-+ 4- o V X o � �••� O a LM o oc oo o o u 0 N X "00 W O a� c� V) O 4- CO /r lop" u u O c c� V) a� u /r L- 0 L11 N 4- O cz O pv�, �u u O c c� V) �u c� Be MI..! V; c cu E Ln r� Fe • • Z3 o � � ao o O a� s 0o s ..I�Q- >- O W E O c� ,O O us O �= +6 L %.%Z a6 o u � � s _0 .� .,..� � s O U a� � u .> c� +a _0 � o � � u u 0 a� 4=0 Lnj E LM O d- O M i O " rmw a� o 0 L� Fe • • Z3 o � � ao o O a� s 0o s ..I�Q- >- O W E O c� ,O O us O �= +6 .O O O a� c c k.0I V um Zz O ,q- "t M O � u L %.%Z E ,v _0 u .O O O a� c c k.0I V um Zz O ,q- "t M O � u a--J v cz cn .s Q O E O s O O i � O O " `— 0 0-0 0- Zi o c� C a� W ._ D Ou zs 0 O O °j x a� t V .61 to Its, O 0 s a-+ c� 4- O O vi 0 t a-+ E a-+ L a-+ L L • • rol O - � 4--J u V) � s 4uJ 4-J c� u m � m � � O mommum 0 a� � 4-J • — .- cry u � O m o� N Ul N .4-J u > O , N O to (1) " O CL c) 0- (...0 oC . ......... ... O 0 CL 4-0 u Q) Q) -0 Q) Q) Q) C) Ln 4- 0 WV) tA rn +-j o 0 E00 4 4-1 M Z 4-J 0-5 Eol Cr L- tA E a) W — 4-J +., E E E 0 L- XE 0- 0 a) :t 0 0 4- 0- ,,t0- W 4-J 0_ Lf X E— U.j rz 4-J -0 .5 L- C: 0 0 0 L- 0 4•J 'Qu� tA tA 0 0 :3 E x) E -C Q x tA= E 4-1 cp E 0 m e--i Ln r-2 a)x 2 x a) n Z E-0 a) E a) a 0 a) 4-1 0 E E=lrn tA E o x0 Eoo-cm-,', 00 � a) ME 4-j� 4-, U.j ca oo :3 4- a) 4-J Er 0 0 0•C: 4Q, J 4-J E t%A- :3 4-J 0 4•J 0 0 x aJ 4-J t, am O c: 0 E.E �.o X 0 :3= u_ 0 LU Q0 0 0 cc:) 4-J :3Q0 0 a) 4-J 4-J TR a) 4-J 4•J x a) =I T 4- 4-0 E a) u u E X X.— C: rz 4 0 4-J O4- 4-J 4-J a) C: a) o > -o a) a C a) 0 E x0 If 0 � X U.j ca ca a) 04 0 A F �F ci E Ln OR d- N V m Ln s cct s a� a� 0 O 4-J O Z > `n Ln Ln 0 Ln c� v��—�cct�1+� rz -a� cct � s � Sz u rZL�� 0 -0 0) 4 -J —0 L- c dJ 4-+ cCf y= w 0.- v, 4y- 01�'.�� CL Ln E w > ., cr p O cct Ln Ln Omw o.1., dJ V w Ln > - Ln s._ �s�.�W4 > w W �n � U.— 4-J cCf u �V � 4-J U � C C '4 —J rg � MO 4-J4- 0 4-J4– 4-a i��cn4-,4-J shy- D-W� �:3 �ctt0M4- J >= ._0 I W �Mill� I W �Uill� 0 •- s � o 4-J v • 4-J .- t v wl� ( V mmmwm 4-J V V v V O L- CL a mom � O � .�4--J O 4--J N •� rz m 00 ro v o � O �Q0 V O E V .,--J O Q . 4 v — a moo= v ss it o ..�s � o L 4 —J . •- •- O 0) 3: �3:o °—'2 -0 ; ;1- °'ern E Z v 4--J �o .° z3��' -� Jv N� 0 0-0 i 0 - C� 0 �•� o � C-0 Vo .��.�•�-' 4 -+ cu � u vu� >•�-' �v r._rcn =cctrmt =cn room o6 > w - cn N M 111 O u - W �y c V tl W c� i oC � � LL 0 V 4- O O W CL 4 z u 0.— mmmmwm 2 C)7 D cn W E O w 0 ce _0 - - D Z 4-J 2 x O LL a� u .V �u- — nn z 'Ul O s O— d' m W Ul iD m i O4-J� U. QCL � r 4-J O a � > > 4mJ Ln� a 4-J � V . y- V W W O (1) 4-' U Ln O O_ .� LL a a � (SON M� y, „ Exhibit 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING SECTIONS 28-27,28-28,28-33,28-34, 28 -123, 28 -124, 28 -144, 28 -145, 28 -251, AND 28 -252 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS. TO PROVIDE FOR THE ADOPTION OF THE 2012 INTERNATIONAL BUILDING CODE, 2012 INTERNATIONAL RESIDENTIAL CODE FOR ONE AND TWO FAMILY DWELLINGS, 2012 INTERNATIONAL FUEL GAS CODE, 2012 INTERNATIONAL PLUMBING CODE, AND THE 2012 INTERNATIONAL MECHANICAL CODE ALL PUBLISHED BY THE INTERNATIONAL CODE COUNCIL, REGULATING AND GOVERNING THE CONDITIONS AND MAINTENANCE OF ALL PROPERTY, BUILDINGS AND STRUCTURES; BY PROVIDING THE STANDARDS FOR SUPPLIED UTILITIES AND FACILITIES AND OTHER PHYSICAL THINGS AND CONDITIONS ESSENTIAL TO ENSURE THAT STRUCTURES ARE SAFE, SANITARY AND FIT FOR OCCUPANCY AND USE; PROVIDING FOR THE CONDEMNATION OF BUILDINGS AND STRUCTURES UNFIT FOR HUMAN OCCUPANCY AND USE AND THE DEMOLITION OF SUCH STRUCTURES, PROVIDING FOR THE REGULATION AND GOVERNING OF THE CONSTRUCTION, ALTERING, MOVEMENT, ENLARGEMENT, REPLACEMENT, REPAIR, EQUIPMENT LOCATION, REMOVAL AND DEMOLITION OF DETACHED ONE AND TWO FAMILY DWELLINGS AND MULTIPLE SINGLE FAMILY DWELLINGS (TOWNHOUSES) NOT MORE THAN THREE STORIES IN HEIGHT WITH SEPARATE MEANS OF EGRESS; PROVIDING THE REGULATION AND GOVERNING OF THE DESIGN CONSTRUCTION, QUALITY OF MATERIALS, ERECTION, INSTALLATION, ALTERATION, REPAIRS, LOCATION, RELOCATION, REPLACEMENT, ADDITION TO, USE OR MAINTENANCE OF PLUMBING AND MECHANICAL SYSTEMS IN THE CITY OF DENTON, TEXAS; PROVIDING FOR THE REGULATION AND GOVERNING OF FUEL GAS SYSTEMS AND GAS FIRED APPLIANCES; PROVIDING FOR THE ISSUANCE OF PERMITS AND COLLECTION OF FEES THEREOF; PROVIDING FOR AMENDMENTS THERETO; PROVIDING FOR A PENALTY FOR VIOLATION OF A FINE NOT TO EXCEED $2,000.00; PROVIDING FOR A SEVERABILITY CLAUSE; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. SECTION 1. That Chapter 28, Section 28 -27 of the Code of Ordinances of the City of Denton is hereby amended so that said section shall hereafter be and read as follows: Adoption of the building code. The International Building Code, 2012 Edition, as published by the International Code Council, a copy of which shall be filed in the Office of the City Secretary and available for public inspection, is hereby adopted and designated as the building code for other than 1 & 2 family dwellings for the city, the same as though the edition of such code were copied at length herein subject to the deletions and amendments enumerated in section 28 -28; That Chapter 28, Section 28 -33 of the Code or Ordinances of the City of Denton is hereby amended so that said section shall hereafter be and read as follows: Adoption of the residential code. The International Residential Code with Appendix G, 2012 edition as published by the International Code Council, a copy which shall be filed in the Office of the City Secretary and available for public inspection, is hereby adopted and designated as the residential code for the city, the same as though the edition of such code were copied at length herein subject to the deletions and amendments enumerated in section 28 -34. That Chapter 28, Section 28 -123 of the Code of Ordinances of the City of Denton is hereby amended so that said section shall hereafter be and read as follows: Adoption of the fuel gas code. The International Fuel Gas Code, 2012 edition as published by the International Code Council, a copy which shall be filed in the Office of the City Secretary and available for public inspection, is hereby adopted and designated as the fuel gas code for the city, the same as though the edition of such code were copied at length herein subject to the deletions and amendments enumerated in section 28 -124. That Chapter 28, Section 28 -144 of the Code or Ordinances of the City of Denton is hereby amended so that said section shall hereafter be and read as follows: Adoption of the plumbing code. The International Plumbing Code, 2012 edition as published by the International Code Council, a copy which shall be filed in the Office of the City Secretary and available for public inspection, is hereby adopted and designated as the plumbing code for the city, the same as though the edition of such code were copied at length herein subject to the deletions and amendments enumerated in section 28 -145. That Chapter 28, Section 28 -251 of the Code or Ordinances of the City of Denton is hereby amended so that said section shall hereafter be and read as follows: Adoption of the mechanical code. The International Mechanical Code, 2012 edition as published by the International Code Council, a copy which shall be filed in the Office of the City Secretary and available for public inspection, is hereby adopted and designated as the mechanical code for the city, the same as though the edition of such code were copied at length herein subject to the deletions and amendments enumerated in section 28 -252. SECTION 2- Section 28 -28 of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows: North Central Texas Council of Governments 1 February 11, 20152012 IBC Amendments 28 -28 Deletions and Amendments: Amendments to the 2012 International Building Code * *Section 101.4; change to read as follows: 101.4 Referenced codes. The other codes listed in Sections 101.4.1 through 101.4.6 and referenced elsewhere in this code, when specifically adopted, shall be considered part of the requirements of this code to the prescribed extent of each such reference. Whenever amendments have been adopted to the referenced codes and standards, each reference to said code and standard shall be considered to reference the amendments as well. Any reference to NFPA 70 or the Electrical Code shall mean the Electrical Code as adopted. * *Section 101.4.7; add the following: 101.4.7 Electrical. The provisions of the Electrical Code shall apply to the installation of electrical systems, including alterations, repairs, replacement, equipment, appliances, fixtures, fittings and appurtenances thereto. ** Section 103 and 103.1 amend to insert the Department Name SECTION 103 Building Inspections Division of the City of Denton 103.1 Creation of enforcement agency. The Building Inspections Division of the City of Denton is hereby created and the official in charge thereof shall be known as the building official. ** *Section 104.10.1; jurisdictions may consider the option to amend or delete depending on local enforcement and flood hazard ordinances. ** *Section 105.2; under sub -title entitled "Building" delete items 1, 2, 10 and 11 and re- number as follows: Building: 1. ... provided the floor area does not exceed 120 - square feet (11 mz). 2. Delete this exemption. 3. (Unchanged) 4. (Unchanged) 5. (Unchanged) 6. (Unchanged) 7. (Unchanged) 8. (Unchanged) 9. (Unchanged) 10. Delete this exemption. 11. (Unchanged) 12. (Unchanged) 13. (Unchanged) * *Section 109; add Section 109.7 to read as follows: 109.7 Re- inspection Fee. A fee as established by city council resolution may be charged when: North Central Texas Council of Governments 2 February 11, 20152012 IBC Amendments 1. The inspection called for is not ready when the inspector arrives; 2. No building address or permit card is clearly posted; 3. City approved plans are not on the job site available to the inspector; 4. The building is locked or work otherwise not available for inspection when called; 5. The job site is red - tagged twice for the same item; 6. The original red tag has been removed from the job site. 7. Failure to maintain erosion control, trash control or tree protection. Any re- inspection fees assessed shall be paid before the final inspection is made on that job site. * *Section 109; add Section 109.8, 109.8.1, 109.8.2 and 109.9 to read as follows: 109.8 Work without a permit. 109.8.1 Investigation. Whenever work for which a permit is required by this code has been commenced without first obtaining a permit, a special investigation shall be made before a permit may be issued for such work. 109.8.2 Fee. An investigation fee, in addition to the permit fee, shall be collected whether or not a permit is subsequently issued. The investigation fee shall be equal to the amount of the permit fee required by this code or the city fee schedule as applicable. The payment of such investigation fee shall not exempt the applicant from compliance with all other provisions of either this code or the technical codes nor from penalty prescribed by law. 109.9 Unauthorized cover up fee. Any work concealed without first obtaining the required inspection in violation of Section 110 shall be assessed a fee as established by the city fee schedule. This fee shall be in addition to any citations issued as a result of work being concealed without proper inspections. * *Section 110.3.5; jurisdiction has the option to delete depending on local inspection policies. Delete the exception * *Section 202; amend definition of Ambulatory Care Facility as follows: AMBULATORY CARE FACILITY. Buildings or portions thereof used to provide medical, surgical, psychiatric, nursing or similar care on a less than 24 -hour basis to individuals who are rendered incapable of self - preservation by the services provided. This group may include but not be limited to the following: - Dialysis centers - Sedation dentistry - Surgery centers - Colonic centers - Psychiatric centers [F]FIRE WATCH. A temporary measure intended to ensure continuous and systematic surveillance of a building or portion thereof by one or more qualified individuals or standby personnel when required by the fire code official, for the purposes of identifying and controlling fire hazards, detecting early signs of unwanted fire, raising an alarm of fire and notifying the fire department. ** *Section 202; add definition of Assisting Living Facilities to read as follows. ASSISTED LIVING FACILITIES. A building or part thereof housing persons, on a 24 -hour basis, who because of age, mental disability or other reasons, live in a supervised residential environment which North Central Texas Council of Governments 3 February 11, 20152012 IBC Amendments provides personal care services. The occupants are capable of responding to an emergency situation without physical assistance from staff. * *Section 202; change definition of "Atrium" as follows: ATRIUM. An opening connecting three or more stories... {Balance remains unchanged} * *Section 202; amend definition to read as follows: HIGH -RISE BUILDING. A building with an occupied floor located more than 55 feet (16 764 mm) above the lowest level of fire department vehicle access. ** *Section 303.1.3; add a sentence to read as follows: 303.1.3 Associated with Group E occupancies. A room or space used for assembly purposes that is associated with a Group E occupancy is not considered a separate occupancy except when applying the assembly requirements of Chapter 10 and 11. * *Section 304.1; add the following to the list of occupancies: Fire stations Police stations with detention facilities for 5 or fewer detainees * *Section 307.1; add the following sentence to Exception 4: 4. Cleaning establishments... {text unchanged} ...with Section 707 or 1 -hour horizontal assemblies constructed in accordance with Section 711 or both. See also IFC Chapter 12, Dry Cleaning Plant provisions. Section 310.1; amend second paragraph under R -3 as follows: Adult care and child care facilities with 5 or fewer unrelated persons that are within a single - family home are permitted to comply with the International Residential Code. * *Section 404.5; delete Exception. * *Section 406.3.2; add item 3 to read as follows: 3. A separation is not required between a Group R -2 and U carport provided that the carport is entirely open on all sides and that the distance between the two is at least 10 feet (3048 mm). * *Section 406.8; add a second paragraph to read as follows: This occupancy shall also excludes garages involved in minor repair, modification and servicing of motor vehicles for items such as lube changes, inspections, windshield repair or replacement, shocks, minor part replacement and other such minor repairs. * *Section 712.1.8, change item 5 to read as follows: 5. Is not open to a corridor in Group I and H occupancies. * *Section 713.14.1 Elevator Lobby. Exceptions: 4.3 change to read as follows: ** *Section 713.14.1; Exception 4.3 Elevators serving floor levels over 55 feet (16 764 mm) above the lowest level of fire department vehicle access in high rise buildings. North Central Texas Council of Governments 4 February 11, 20152012 IBC Amendments Chapter 9; Fire Protection Systems refer to the 2009 International Fire Code as amended by the City of Denton, except for sections 909 Smoke Control Systems and section 910 Smoke and Heat Vents. * *Section 910.1; change Exception 2 to read as follows: [F] 2. Where areas of buildings are equipped with early suppression fast - response (ESFR) sprinklers, only manual smoke and heat vents shall be required within these areas. Automatic smoke and heat vents are prohibited. * ** Section 910.2 Where required to read as follows: [F] {Text unchanged } ...... Sections 910.2.1 through 910.2.4 * *Add subsections 910.2.3 with exceptions to read as follows: [F] 910.2.3 Group H. Buildings and portions thereof used as a Group H occupancy as follows: 1. In occupancies classified as Group H -2 or H -3, any of which are more than 15,000 square feet (1394 m2) in single floor area. Exception: Buildings of noncombustible construction containing only noncombustible materials. 2. In areas of buildings in Group H used for storing Class 2, 3, and 4 liquid and solid oxidizers, Class 1 and unclassified detonable organic peroxides, Class 3 and 4 unstable (reactive) materials, or Class 2 or 3 water- reactive materials as required for a high- hazard commodity classification. Exception: Buildings of noncombustible construction containing only noncombustible materials. * *Add subsections 910.2.4 to read as follows: [F] 910.2.4 Exit access travel distance increase. Buildings and portions thereof used as a Group F -1 or S -1 occupancy where the maximum exit access travel distance is increased in accordance with Section 1016.2.2. * *Table 910.3; Change the title of the first row of the table from "Group F -1 and S -1" to include "Group H" and to read as follows: Group H, F -1 and S -1 * *Section 1007.1; add the following Exception 4: Exceptions: {previous exceptions unchanged} 4. Buildings regulated under State Law and built in accordance with State registered plans, including any variances or waivers granted by the State, shall be deemed to be in compliance with the requirements of Section 1007. * ** Section 1007.5; Platform lifts, amend to read as follows: 1007.5 Platform lifts. Platform (wheelchair) lifts ... required accessible route in Section 1109.7- 8, Items 1 through -9 10. Standby power .. {remainder unchanged} 1008.1 Doors. (Previous text unchanged) North Central Texas Council of Governments 5 February 11, 20152012 IBC Amendments Exterior door openings more than 30 inches from the top of the threshold to the surface or ground on the exterior side of the door, that are not part of a means of egress, shall be protected by an engineered guard designed for a live load equal to the occupancy served. The means of attachment of the guard to the structure shall be designed and stamped by a registered professional engineer. The design of the guard shall meet or exceed the minimum requirements of sections 1013. 2 and 2308. 12. 7 of this code; otherwise the exterior operating door shall be fixed in a closed position with all operating hardware removed. ** *Section 1008.1.9.4; amend exceptions 3 and 4 as follows: Section 1008.1.4.4 ask Fire Exceptions: 3. Where a pair of doors serves an occupant load of less than 50 persons in a Group B, F, M or S occupancy. {Remainder unchanged} 4. Where a pair of doors serves a Group A, B, F, M or S occupancy. {Remainder unchanged} * *Section 1008.1.9.9; (Previous text unchanged) Delete exceptions 4 M. (Remainder of section unchanged) * *Section 1008.1.9.9; change to read as follows: Section 1008.1.9.3 ask Fire 1008.1.9.9 Electromagnetically locked egress doors. Doors in the means of egress in buildings with an occupancy in Group A, B, E, 1 -1, 1 -2, M, R -1 or R -2 and doors to tenant spaces in Group A, B, E, 1-1, 1- 2 M, R -1 or R -2 shall be permitted to be electromagnetically locked if equipped with listed hardware that incorporates a built -in switch and meet the requirements below: {remaining text unchanged} * *Section 1015; add new section 1015.7 to read as follows: 1015.7 Electrical Rooms. For electrical rooms, special exiting requirements may apply. Reference the electrical code as adopted. ** *Section 1016; add new section 1016.2.2 to read as follows: 1016.2.2 Group F -1 and S -1 increase. The maximum exit access travel distance shall be 400 feet (122 m) in Group F -1 or S -1 occupancies where all of the following are met: 1. The portion of the building classified as Group F -1 or S -1 is limited to one story in height; 2. The minimum height from the finished floor to the bottom of the ceiling or roof slab or deck is 24 feet (7315 mm); and 3. The building is equipped throughout with an automatic fire sprinkler system in accordance with Section 903.3.1.1. ** *Section 1018.1; add exception 6 to read as follows: {previous text unchanged} In Group B office buildings, corridor walls and ceilings within single tenant spaces need not be of fire - resistive construction when the tenant space corridor is provided with system smoke detectors tied to an approved automatic fire alarm. The actuation of any detector shall activate alarms audible in all areas served by the corridor. North Central Texas Council of Governments 6 February 11, 20152012 IBC Amendments * *Section 1026.6; amend exception 4 to read as follows: Exceptions: (Exceptions 1 through 3 unchanged} 4. Separation from the open -ended corridors of the building... (remaining text unchanged} ** *Section 1028.1.1.1; delete. ** *Section 1029.1; amend to read as follows: 1029.1 General. In addition to the means of egress required by this chapter, provisions shall be made for emergency escape and rescue openings in Group R and I- 1- you -R-2 occupancies .pith Tahloo 1021.2(i) and 1021 2(2) and GPO 1P R_.3 „ �. {Remainder unchanged} Exceptions: {Exceptions 1 through 3 unchanged.} 4. In other than Group R -3 occupancies, buildings equipped throughout with an approved automatic sprinkler system in accordance with Section 903.3.1.1 or 903.3.1.2. * *Section 1101.2; Add exception to read as follows: Exceptions: Projects registered with the Architectural Barriers Division of the Texas Department of Licensing and Regulation shall be deemed to be in compliance with the requirements of this Chapter. ** *Section 1203.1; amend to read as follows: ** *1203.1 General. Buildings shall be provided with natural ventilation in accordance with Section 1203.4, or mechanical ventilation in accordance with the International Mechanical Code. Where air infiltration rate in a dwelling unit is 5 air changes or less per hour when tested with a blower door at a pressure 0.2 inch w.c. (50 Pa) in accordance with Section 402.4.1.2 of the International Energy Conservation Code, the dwelling unit shall be ventilated by mechanical means in accordance with Section 403 of the International Mechanical Code. ** *Table 1505.1; delete footnote c and replace footnote b with the following: b. Non - classified roof coverings shall be permitted on buildings of U occupancies having not more than 120 sq. ft. of protected roof area. When exceeding 120 sq. ft. of protected roof area, buildings of U occupancies may use non -rated non - combustible roof coverings. c. [delete] * *Section 1505.7; delete the section * *Section 1510.1; add a sentence to read as follows: 1510.1 General. Materials and methods of applications used for recovering or replacing an existing roof covering shall comply with the requirements of Chapter 15. All individual replacement shingles or shakes shall be in compliance with the rating required by Table 1505.1. (text of exception unchanged} * *Section 2901.1; add a sentence to read as follows: [P] 2901.1 Scope. {existing text to remain} The provisions of this Chapter are meant to work in coordination with the provisions of Chapter 4 of the International Plumbing Code. Should any conflicts arise between the two chapters, the Building Official shall determine which provision applies. * *Table 2902.1; change footnote f to read as follows: North Central Texas Council of Governments 7 February 11, 20152012 IBC Amendments f. Drinking fountains are not required in M Occupancies with an occupant load of 100 or less, B Occupancies with an occupant load of 25 or less, and for dining and /or drinking establishments. * *Section 3006.1; change to read as follows: 3006.1, General. Elevator machine rooms shall be provided. fRemainderunchanged.) * *Section 3006.4 ; add a sentence to read as follows and delete exceptions 1 and 2: LFj 3006.5. Machine Rooms and Machinery Spaces: (text unchanged}... Storage shall not be allowed within the elevator machine room. Provide approved signage at each entry door to the elevator machine room stating "Elevator Machinery — No Storage Allowed." ** *Section 3109.1; change to read as follows: 3109.1 General. Swimming pools shall comply with the requirements of sections 3109.2 through 3109.5 and other applicable sections of this code and comply with applicable state laws. ** *Section 3401.5 Alternative Compliance. Work performed in accordance with the International Existing Building Code shall be deemed to comply with the provisions of this chapter with prior approval from the Building Official. ** *Section 3401.6 Dangerous Conditions. (Remainder unchanged.} END SECTION 3. Section 28 -34 of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows: 28 -34. Deletions and Amendments: Amendments to the 2012 International Residential Code Section R101.1; Insert jurisdiction name as follows: R101.1 Title. These regulations shall be known as the Residential Code for One- and Two - family Dwellings of the City of Denton hereinafter referred to as "this code." * *Section R102.4; change to read as follows: R102.4 Referenced codes and standards. The codes, when specifically adopted, and standards referenced in this code shall be considered part of the requirements of this code to the prescribed extent of each such reference and as further regulated in Sections R102.4.1 and R102.4.2. Whenever amendments have been adopted to the referenced codes and standards, each reference to said code and standard shall be considered to reference the amendments as well. Any reference made to NFPA 70 or the Electrical Code shall mean the Electrical Code as adopted. (3)Section R105.2; make changes to this section as follows: R105.2 Work exempt from permits. No changes in first paragraph. Building: 1. ...provided the floor area does not exceed 120 square feet... 2. Delete this exemption 3. No changes 4. No changes 5. No changes 6. No changes North Central Texas Council of Governments 8 February 11, 20152012 IBC Amendments 7. No changes 8. No changes 9. No changes 10. Decks not exceeding 120 square feet in area... 108.7 Re- inspection Fee. A fee as established by city council resolution may be charged when: 1. The inspection called for is not ready when the inspector arrives; 2. No building address or permit card is clearly posted; 3. Approved plans are not on the iob site available to the inspector; 4. The building is locked or work otherwise not available for inspection when called; 5. The iob site is red - tagged twice for the same item; 6. The original red tag has been removed from the iob site and /or, 7. Violations exist on the property including failure to maintain erosion control, trash control or tree protection. 8. Any re- inspection fees assessed shall be paid before any more inspections are made on that iob site. * *Section R110 (R110.1 through R110.5); delete the section. * *Section R112.2.1 & R112.2.2; delete the sections. * *Section R202; change definition of "Townhouse" to read as follows: TOWNHOUSE. A single - family dwelling unit constructed in a group of three or more attached units separated by property lines in which each unit extends from foundation to roof and with a yard or public way on at least two sides. ** *Table R301.2(1); fill in as follows: GROUND SNOW LOAD WIND DESIGN SEISMIC DESIGN CATEGORY SPEED (mph) Topographic Effects' 5 Ib /ft2 90 (3- sec - gust) /76 No A 64.9 °F fastest mile — — SUBJECT TO DAMAGE FROM Weathering' Frost line depth Termite° moderate 6" very heavy WINTER DESIGN TEMPe ICE BARRIER UNDER- LAYMENT REQUIRED FLOOD HAZARDS9 AIR FREEZING INDEX MEAN ANNUAL TEMP] 22 °F No local code 150 64.9 °F {No change to footnotes} * *Section R302.1; add exception #6 to read as follows: Exceptions: {previous exceptions unchanged} 6. Open non - combustible carport structures may be constructed when also approved within adopted ordinances. ** *Section R302.2, Exception; change to read as follows: North Central Texas Council of Governments 9 February 11, 20152012 IBC Amendments Exception: A common two -hour fire - resistance -rated wall assembly, or one -hour fire - resistance -rated wall assembly when equipped with a sprinkler system... (remainder unchanged} ** *Section R302.2.4, Exception 5; change to read as follows: Exception: (previous exceptions unchanged} 5. Townhouses separated by a common fire - resistance -rated wall as provided in Section R302.2. ** *Section R302.3; add Exception #3 to read as follows: Exceptions: 1. (existing text unchanged} 2. (existing text unchanged} 3. Two - family dwelling units that are also divided by a property line through the structure shall be separated as required for townhouses. ** *Section R302.5.1; change to read as follows: R302.5.1 Opening protection. Openings from a private garage directly into a room used for sleeping purposes shall not be permitted. Other openings between the garage and residence shall be equipped with solid wood doors not less than 13/8 inches (35 mm) in thickness, solid or honeycomb core steel doors not less than 13/8 inches (35 mm) thick, or 20- minute fire -rated doors. Delete remainder and add: Pull down ladders installed in the ceiling of an attached garage, where the garage attic is open to the attic of the house, shall have a minimum 20 minute fire rating or have an approved covering of fire retardant materials. Section R302.7; change to read as follows: R302.7 Under stair protection. Enclosed accessible space under stairs shall have walls, under stair surface and any soffits protected on the enclosed side with 5/8 -inch (15.8 mm) fire -rated gypsum board or one -hour fire - resistive construction. * * *R303.4 Mechanical Ventilation; change to read as follows: Every dwelling unit shall be provided with whole -house mechanical ventilation in accordance with Section M1507.3. ** *Section R315.3, amend and add exceptions as follows: Where required in existing dwellings. Where work requiring a permit for an addition or an alteration that occurs in existing dwellings, that have attached garages or in existing dwellings within which fuel - fired appliances exist, carbon monoxide alarms shall be provided in accordance with Section R315.1: Exceptions: 1. Work involving the exterior surfaces of dwellings, such as the replacement of roofing or siding, or the addition or replacement of windows or doors, or the addition of a porch or deck, are exempt from the requirements of this section. 2. Installation, alteration or repairs of plumbing or mechanical systems are exempt from the requirements of this section. North Central Texas Council of Governments 10 February 11, 20152012 IBC Amendments ** *Section R401.2, amended by adding a new paragraph following the existing paragraph to read as follows. Section R401.2. Requirements. (existing text unchanged} ... Every foundation and /or footing, or any size addition to an existing post- tension foundation, regulated by this code shall be designed and sealed by a Texas - registered engineer. Section R401.2.1 Engineered design. Every foundation and /or footing which exceeds 400 square feet in area, or any addition to an existing post tensioned foundation, regulated by this code shall be designed and sealed by a Texas - registered engineer. * *Section 602.6.1; amend the following: R602.6.1 Drilling and notching of top plate. When piping or ductwork is placed in or partly in an exterior wall or interior load- bearing wall, necessitating cutting, drilling or notching of the top plate by more than 50 percent of its width, a galvanized metal tie not less than 0.054 inch thick (1.37 mm) (16 Ga) and 5 inches (127 mm) wide shall be fastened across and to the plate at each side of the opening with not less than eight 10d (0.148 inch diameter) having a minimum length of 1 '/2 inches (38 mm) at each side or equivalent. Fasteners will be offset to prevent splitting of the top plate material. The metal tie must extend a minimum of 6 inches past the opening. See figure R602.6.1. {remainder unchanged} * *Figure R602.6.1; delete the figure and insert the following figure: r i AND 5 IN. WIDE .NEIL ACROSS AND r EACH SIDE OF THE ?d NAIL S EACH SIDE North Central Texas Council of Governments 11 February 11, 20152012 IBC Amendments * *Section R703.7.4.1; add a second paragraph to read as follows: In stud framed exterior walls, all ties shall be anchored to studs as follows: 1. When studs are 16 in (407 mm) o.c., stud ties shall be spaced no further apart than 24 in (737 mm) vertically starting approximately 12 in (381 mm) from the foundation; or 2. When studs are 24 in (610 mm) o.c., stud ties shall be spaced no further apart than 16 in (483 mm) vertically starting approximately 8 in (254 mm) from the foundation. * *Section R902.1; Amend and add exception #3 to read as follows: R902.1 Roofing covering materials. Roofs shall be covered with materials as set forth in Sections R904 and R905. Class A, B, or C roofing shall be installed. {remainder unchanged} Exceptions: 1. {text unchanged} 2. {text unchanged} 3. {text unchanged} 4. Non - classified roof coverings shall be permitted on one -story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 200 SF , and there shall be a minimum of 6 feet between detached accessory structures and a residential dwelling unit. Sections N7101 through N7103 shall conform to the requirements of the 2012 International Energy Conservation Code as amended by the City of Denton. ** *Section M1305.1.3; change to read as follows: M1305.1.3 Appliances in attics. Attics containing appliances requiring access shall be provided ... {bulk of paragraph unchanged} ... sides of the appliance where access is required. The clear access opening dimensions shall be a minimum of 20 inches by 30 inches (508 mm by 762 mm), or larger and large enough to allow removal of the largest appliance. A walkway to an appliance shall be rated as a floor as approved by the building official. As a minimum, for access to the attic space, provide one of the following: 1. A permanent stair. 2. A pull down stair with a minimum 300 lb (136 kg) capacity. 3. An access door from an upper floor level. 4. (Delete) Exceptions: 1. The passageway and level service space are not required where the appliance can be serviced and removed through the required opening. 2. Where the passageway is unobstructed ... {remaining text unchanged} (Add the following) Water heaters of any type shall not be installed within attics; with the exception of replacement of existing water heaters. North Central Texas Council of Governments 12 February 11, 20152012 IBC Amendments * *Section M1411.3; change to read as follows: M1411.3 Condensate disposal. Condensate from all cooling coils or evaporators shall be conveyed from the drain pan outlet to a sanitary sewer through a trap, by means of a direct or indirect drain unless otherwise approved by a building official... {remaining text unchanged} * * *M1503.4 Makeup Air Required Amend and add exception as follows: M1503.4 Makeup air required. Exhaust hood systems capable of exhausting in excess of 400 cubic feet per minute (0.19 m3 /s) shall be provided with makeup air at a rate approximately equal to the difference between the exhaust air rate and 400 cubic feet per minute. Such makeup air systems shall be equipped with a means of closure and shall be automatically controlled to start and operate simultaneously with the exhaust system. Exception: Where all appliances in the house are of sealed combustion, power -vent, unvented, or electric, the exhaust hood system shall be permitted to exhaust up to 600 cubic feet per minute (0.28 m3 /s) without providing makeup air. Exhaust hood systems capable of exhausting in excess of 600 cubic feet per minute (0.28 m3 /s) shall be provided with a makeup air at a rate approximately equal to the difference between the exhaust air rate and 600 cubic feet per minute. * *Section M2005.2; change to read as follows: M2005.2 Prohibited locations. Fuel -fired water heaters shall not be installed in a room used as a storage closet. Water heaters located in a bedroom or bathroom shall be installed in a sealed enclosure so that combustion airwill not be taken from the living space. Access to such enclosure may be from the bedroom or bathroom when through a solid door, weather - stripped in accordance with the exterior door air leakage requirements of the International Energy Conservation Code and equipped with an approved self - closing device. Installation of direct -vent water heaters within an enclosure is not required. (Add the following) Water heaters of any type shall not be installed within attics; with the exception of replacement of existing water heaters. * *Section G2408.3 (305.5); delete. * *Section G2415.2.1 (404.2.1); add a second paragraph to read as follows: Both ends of each section of medium pressure gas piping shall identify its operating gas pressure with an approved tag. The tags are to be composed of aluminum or stainless steel and the following wording shall be stamped into the tag: "WARNING 1/2 to 5 psi gas pressure Do Not Remove" * *Section G2415.2.2 (404.2.2); add an exception to read as follows: Exception: Corrugated stainless steel tubing (CSST) shall be a minimum of 1/2"(18 EDH). * *Section G2415.7 Protection from physical damage. (Previous verbiage unchanged) (Add the following) North Central Texas Council of Governments 13 February 11, 20152012 IBC Amendments CSST pipe shall not be installed within insulated exterior walls or within 12 inches of the connection between the top plate of an insulated exterior wall and roof rafters. * *Section G2415.12 (404.12); change to read as follows: G2415.12 (404.12) Minimum burial depth. Underground piping systems shall be installed a minimum depth of 18 inches (457 mm) below grade, except as provided for in Section G2415.12.1. * *Section G2417.4; change to read as follows: G2417.4 (406.4) Test pressure measurement. Test pressure shall be measured with a manometer or with a pressure- measuring device designed and calibrated to read, record, or indicate a pressure loss caused by leakage during the pressure test period. The source of pressure shall be isolated before the pressure tests are made. Gauges used to measure... (remainder unchanged} * *Section G2417.4.1; change to read as follows: G2417.4.1 (406.4.1) Test pressure. The test pressure to be used shall be not less than 3 psig (20 kPa gauge), or at the discretion of the Building Official, the piping and valves may be tested at a pressure of at least six (6) inches (152 mm) of mercury, measured with a manometer or slope gauge For tests requiring a pressure of 3 psig, gauges shall utilize a dial with a minimum diaphragm diameter of three and one half inches (3'/2 "), a set hand, 1/10 pound incrementation and pressure range not to exceed 6 psi for tests requiring a pressure of 3 psig. For tests requiring a pressure of 10 psig, diaphragm gauges shall utilize a dial with a minimum diameter of three and one -half inches (3'/2 "), a set hand, a minimum of 2/10 pound incrementation and a pressure range not to exceed 20 psi For welded piping, and for piping carrying gas at pressures in excess of fourteen (14) inches water column pressure (3.48 kPa) (1/2 psi) and less than 200 inches of water column pressure (52.2 kPa) (7.5 psi), the test pressure shall not be less than ten (10) pounds per square inch (69.6 kPa). For piping carrying gas at a pressure that exceeds 200 inches of water column (52.2 kPa) (7.5 psi), the test pressure shall be not less than one and one -half times the proposed maximum working pressure. * *Section G2417.4.2; change to read as follows: G2417.4.2 (406.4.2) Test duration. The test duration shall -be held for a length of time satisfactory to the Building Official, but in no case for less than fifteen (15) minutes. For welded piping, and for piping carrying gas at pressures in excess of fourteen (14) inches water column pressure (3.48 kPa), the test duration shall be held for a length of time satisfactory to the Building Official, but in no case for less than thirty (30) minutes. * *Section G2420.1 (406.1); add Section G2420.1.4 to read as follows: G2420.1.4 Valves in CSST installations. Shutoff valves installed with corrugated stainless steel (CSST) piping systems shall be supported with an approved termination fitting, or equivalent support, suitable for the size of the valves, of adequate strength and quality, and located at intervals so as to prevent or damp out excessive vibration but in no case greater than 12- inches from the center of the valve. Supports shall be installed so as not to interfere with the free expansion and contraction of the system's piping, fittings, and valves between anchors. All valves and supports shall be designed and installed so they will not be disengaged by movement of the supporting piping. ** *Section G2420.5.1 (409.5.1); add text to read as follows: G2420.5.1 (409.5.1) Located within the same room. The shutoff valve ...fbulk of paragraph unchanged}... in accordance with the appliance manufacturer's instructions. A secondary shutoff valve must be installed within 3 feet (914 mm) of the firebox if appliance shutoff is located in the firebox. * *Section G2421.1 (410.1); add text and Exception to read as follows: North Central Texas Council of Governments 14 February 11, 20152012 IBC Amendments G2421.1 (410.1) Pressure regulators. A line pressure regulator shall be ... {bulk of paragraph unchanged}... approved for outdoor installation. Access to regulators shall comply with the requirements for access to appliances as specified in Section M1305. Exception: A passageway or level service space is not required when the regulator is capable of being serviced and removed through the required attic opening. * *Section G2422.1.2.3 (411.1.3.3); delete Exception 1 and Exception 4. * *Section G2445.2 (621.2); add Exception to read as follows: G2445.2 (621.2) Prohibited use. One or more unvented room heaters shall not be used as the sole source of comfort heating in a dwelling unit. Exception: Existing approved unvented room heaters may continue to be used in dwelling units, in accordance with the code provisions in effect when installed, when approved by the Building Official unless an unsafe condition is determined to exist as described in International Fuel Gas Code Section 108.7 of the Fuel Gas Code. * *Section G2448.1.1 (624.1.1); change to read as follows: G2448.1.1 (624.1.1) Installation requirements. The requirements for water heaters relative to access, sizing, relief valves, drain pans and scald protection shall be in accordance with this code. Water heaters shall not be installed within attics. * *Section P2801.6; add Exception to read as follows: Exceptions: 1. Electric Water Heater. ** Section P2903.7 Minimum Size of water - service mains, branch mains and risers. The minimum size water service pipe shall be 44 1 inch. (Remainder of section unchanged) * *Section P3005.2.1 Materials. ( existing section with no changes} ... All building cleanouts subject to vehicular damage shall be cast iron. * *Section P3005.2.6; change to read as follows: P3005.2.6 Base of stack- Upper Terminal. n E)Ie RE) t shall be . ,ded at the base of each waste sa!staGk. Each horizontal drain shall be provided with a cleanout at its upper terminal. Exception: Cleanouts may be omitted on a horizontal drain less than five (5) feet (1524 mm) in length unless such line is serving sinks or urinals. P3005.2.7 Building drain and building sewer junction. There shall be a cleanout near... Back to back combination fittings shall be installed to serve as the required cleanouts for both the building drain and the building sewer, unless other fittings are approved by the Building Official. The cleanout at the ,.,. * *Section P3111; delete. * *Section P3112.2; delete and replace with the following: P3112.2 Installation. Traps for island sinks and similar equipment shall be roughed in above the floor and may be vented by extending the vent as high as possible, but not less than the drainboard height and then returning it downward and connecting it to the horizontal sink drain immediately downstream from the vertical fixture drain. The return vent shall be connected to the horizontal drain through a wye- branch North Central Texas Council of Governments 15 February 11, 20152012 IBC Amendments fitting and shall, in addition, be provided with a foot vent taken off the vertical fixture vent by means of a wye- branch immediately below the floor and extending to the nearest partition and then through the roof to the open air or may be connected to other vents at a point not less than six (6) inches (152 mm) above the flood level rim of the fixtures served. Drainage fittings shall be used on all parts of the vent below the floor level and a minimum slope of one - quarter (1/4) inch per foot (20.9 mm /m) back to the drain shall be maintained. The return bend used under the drainboard shall be a one (1) piece fitting or an assembly of a forty -five (45) degree (0.79 radius), a ninety (90) degree (1.6 radius) and a forty -five (45) degree (0.79 radius) elbow in the order named. Pipe sizing shall be as elsewhere required in this Code. The island sink drain, upstream of the return vent, shall serve no other fixtures. An accessible cleanout shall be installed in the vertical portion of the foot vent. Chapters 34 through 43; delete. Except for additional amendment that follows, replace chapters 34 through and including chapter 43 of the International Residential Code with the National Electrical Code as amended and adopted. (62)Section E3301.1; add amendment to read as follows: Electricians holding a State Electrical Apprentice license shall be directly supervised by an electrician holding a State Residential Wireman license. (63)Appendix G Swimming Pools, Spas and Hot Tubs. Adopt as part of this code with the amendment as follows: Section AG105.2; changed to read as follows: AG105.2 Outdoor swimming pool. An outdoor swimming pool, including an in- ground, above - ground or on- ground pool, hot tub or spa shall be surrounded by a barrier which shall comply with the following: 1. The top of the barrier shall be at least 60 inches above grade measured on the side of the barrier which faces away from the swimming pool. (64)Appendix H Patio Covers. Adopt as part of this code. (65)Appendix J Existing Buildings and Structures. Adopt as part of this code. A N SECTION 4. Section 28 -124 of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows: 28 -124. Deletions and amendments. Amendments to the 2012 International Fuel Gas Code * *Section 102.2; add an exception to read as follows: Exception: Existing dwelling units shall comply with Section 621.2. * *Section 102.8; change to read as follows: 102.8 Referenced codes and standards. The codes and standards referenced in this code shall be those that are listed in Chapter 8 and such codes, when specifically adopted, and standards shall be considered part of the requirements of this code to the prescribed extent of each such reference. Where differences occur between provisions of this code and the referenced standards, the provisions of this code shall apply. Whenever amendments have been adopted to the referenced codes and standards, North Central Texas Council of Governments 16 February 11, 20152012 IBC Amendments each reference to said code and standard shall be considered to reference the amendments as well. Any reference to NFPA 70 or the ICC Electrical Code shall mean the Electrical Code as adopted. * *Section 304.10; change to read as follows: 304.10 Louvers and grilles. The required size of openings for combustion, ventilation and dilution air shall be based on the net free area of each opening. Where the free area through a design of louver, grille or screen is known, it shall be used in calculating the size opening required to provide the free area specified. Where the design and free area of louvers and grilles are not known, it shall be assumed that wood louvers will have 25- percent free area and metal louvers and grilles will have X50- percent free area. Screens shall have a mesh size not smaller than 1/4 inch (6.4 mm). Nonmotorized louvers and grilles shall be fixed in the open position. Motorized louvers shall be interlocked with the appliance so that they are proven to be in the full open position prior to main burner ignition and during main burner operation. Means shall be provided to prevent the main burner from igniting if the louvers fail to open during burner start -up and to shut down the main burner if the louvers close during operation. * *Section 304.11; change #8 to read as follows: 304.11 Combustion air ducts. Combustion air ducts shall comply with all of the following: 1. Ducts shall be constructed of galvanized steel complying with Chapter 6 of the International Mechanical Code or of a material having equivalent corrosion resistance, strength and rigidity. Exception: Within dwellings units, unobstructed stud and joist spaces shall not be prohibited from conveying combustion air, provided that not more than one required fireblock is removed. 2. Ducts shall terminate in an unobstructed space allowing free movement of combustion air to the appliances. 3. Ducts shall serve a single enclosure. 4. Ducts shall not serve both upper and lower combustion air openings where both such openings are used. The separation between ducts serving upper and lower combustion air openings shall be maintained to the source of combustion air. 5. Ducts shall not be screened where terminating in an attic space. 6. Horizontal upper combustion air ducts shall not slope downward toward the source of combustion air. 7. The remaining space surrounding a chimney liner, gas vent, special gas vent or plastic piping installed within a masonry, metal or factory -built chimney shall not be used to supply combustion air. Exception: Direct -vent gas -fired appliances designed for installation in a solid fuel- burning fireplace where installed in accordance with the manufacturer's instructions. 8. Combustion air intake openings located on the exterior of a building shall have the lowest side of such openings located not less than 12 inches (305 mm) vertically from the adjoining ground level or the manufacturer's recommendation, whichever is more restrictive. ** *Section 306.3; change to read as follows: [M] 306.3 Appliances in attics. Attics containing appliances requiring access shall be provided ... (bulk of paragraph unchanged} ... side of the appliance. The clear access opening dimensions shall be a minimum of 20 inches by 30 inches (508 mm by 762 mm), or larger where such dimensions are not North Central Texas Council of Governments 17 February 11, 20152012 IBC Amendments large enough to allow removal of the largest appliance. As a minimum, for access to the attic space, provide one or more of the following are required: 1. A permanent stair. 2. A pull down stair with a minimum 300 lb (136 kg) capacity. 3. An access door from an upper floor level. 4. (Delete) Exceptions: 1. The passageway and level service space are not required where the appliance is capable of being serviced and removed through the required opening. 2. Where the passageway is not less than ... {bulk of section to read the same}. (Add the following) Water heaters shall not be installed within attics. * *Section 306; add Section 306.7 with exception and subsection 306.7.1 to read as follows: 306.7 Water heaters above ground or floor. When the attic, roof, mezzanine or platform in which a water heater is installed is more than eight (8) feet (2438 mm) above the ground or floor level, it shall be made accessible by a stairway or permanent ladder fastened to the building. (Add the following) Water heaters shall not be installed within attics. Exception: A max 10 gallon water heater (or larger when approved by the code official) is capable of being accessed through a lay -in ceiling and a water heater is installed is not more than ten (10) feet (3048 mm) above the ground or floor level and may be reached with a portable ladder. 306.7.1. Illumination and convenience outlet. Whenever the mezzanine or platform is not adequately lighted or access to a receptacle outlet is not obtainable from the main level, lighting and a receptacle outlet shall be provided in accordance with Section 306.3.1. * *Section 401.5; add a second paragraph to read as follows: Both ends of each section of medium pressure corrugated stainless steel tubing (CSST) shall identify its operating gas pressure with an approved tag. The tags are to be composed of aluminum or stainless steel and the following wording shall be stamped into the tag: "WARNING 1/2 to 5 psi gas pressure Do Not Remove" * *Section 402.3; add an exception to read as follows: Exception: Corrugated stainless steel tubing (CSST) shall be a minimum of 1/2" ( 18 EHD). * *Section 404.2; add a sentence to read as follows: ...CSST pipe shall not be installed within insulated exterior walls or within 12 inches of the connection between the top plate of an insulated exterior wall and roof rafters. ** *Section 404.12; change to read as follows: North Central Texas Council of Governments 18 February 11, 20152012 IBC Amendments 404.12 Minimum burial depth. Underground piping systems shall be installed a minimum depth of 18 inches (458 mm) top of pipe below grade-. **Section 406.1; change to read as follows: 406.1 General. Prior to acceptance and initial operation, all piping installations shall be inspected and pressure tested to determine that the materials, design, fabrication, and installation practices comply with the requirements of this code. The permit holder shall make the applicable tests prescribed in Sections 406.1.1 through 406.1.5 to determine compliance with the provisions of this code. The permit holder shall give reasonable advance notice to the code official when the piping system is ready for testing. The equipment, material, power and labor necessary for the inspections and test shall be furnished by the permit holder and the permit holder shall be responsible for determining that the work will withstand the test pressure prescribed in the following tests. * *Section 406.4; change to read as follows: 406.4 Test pressure measurement. Test pressure shall be measured with a monometer or with a pressure- measuring device designed and calibrated to read, record, or indicate a pressure loss caused by leakage during the pressure test period. The source of pressure shall be isolated before the pressure tests are made. * *Section 406.4.1; change to read as follows: 406.4.1 Test pressure. The test pressure to be used shall be no less than 3 psig (20 kPa gauge), or at the discretion of the Code Official, the piping and valves may be tested at a pressure of at least six (6) inches (152 mm) of mercury, measured with a manometer or slope gauge, For tests requiring a pressure of 3 psig, diaphragm gauges shall utilize a dial with a minimum diameter of three and one half inches (3 '/2 "), a set hand, 1/10 pound incrementation and pressure range not to exceed 6 psi for tests requiring a pressure of 3 psig. For tests requiring a pressure of 10 psig, diaphragm gauges shall utilize a dial with a minimum diameter of three and one -half inches (3'/2 "), a set hand, a minimum of 2/10 pound incrementation and a pressure range not to exceed 20 psi. For welded piping, and for piping carrying gas at pressures in excess of fourteen (14) inches water column pressure (3.48 kPa) (1/2 psi) and less than 200 inches of water column pressure (52.2 kPa) (7.5 psi), the test pressure shall not be less than ten (10) pounds per square inch (69.6 kPa). For piping carrying gas at a pressure that exceeds 200 inches of water column (52.2 kPa) (7.5 psi), the test pressure shall be not less than one and one -half times the proposed maximum working pressure. * *Section 406.4.2; change to read as follows: 406.4.2 Test duration. Test duration shall be held for a length of time satisfactory to the Code Official, but in no case for less than fifteen (15) minutes. For welded piping, and for piping carrying gas at pressures in excess of fourteen (14) inches water column pressure (3.48 kPa), the test duration shall be held for a length of time satisfactory to the Code Official, but in no case for less than thirty (30) minutes. (Delete remainder of section.) * *Section 409.1; add Section 409.1.4 to read as follows: 409.1.4 Valves in CSST installations. Shutoff valves installed with corrugated stainless steel (CSST) piping systems shall be supported with an approved termination fitting, or equivalent support, suitable for the size of the valves, of adequate strength and quality, and located at intervals so as to prevent or damp out excessive vibration but in no case greater than 12- inches from the center of the valve. Supports shall be installed so as not to interfere with the free expansion and contraction of the system's piping, fittings, and valves between anchors. All valves and supports shall be designed and installed so they will not be disengaged by movement of the supporting piping. North Central Texas Council of Governments 19 February 11, 20152012 IBC Amendments * *Section 410.1; add a second paragraph and exception to read as follows: Access to regulators shall comply with the requirements for access to appliances as specified in Section 306. Exception: A passageway or level service space is not required when the regulator is capable of being serviced and removed through the required attic opening. * *Section 621.2; add exception as follows: 621.2 Prohibited use. One or more unvented room heaters shall not be used as the sole source of comfort heating in a dwelling unit. Exception: Existing approved unvented heaters may continue to be used in dwelling units, in accordance with the code provisions in effect when installed, when approved by the Code Official unless an unsafe condition is determined to exist as described in Section 108.7. * *Section 624.1.1; change to read as follows: 624.1.1 Installation requirements. The requirements for water heaters relative to access, sizing, relief valves, drain pans and scald protection shall be in accordance with the International Plumbing Code. END 28 -145. Deletions and amendments. Amendments to the 2009 International Plumbing Code * *Table of Contents, Chapter 7, Section 714; change to read as follows: 714 Engineered Drainage Design ................... 67 * *Section 102.8; change to read as follows: 102.8 Referenced codes and standards. The codes and standards referenced in this code shall be those that are listed in Chapter 13 and such codes, when specifically adopted, and standards shall be considered as part of the requirements of this code to the prescribed extent of each such reference. Where the differences occur between provisions of this code and the referenced standards, the provisions of this code shall be the minimum requirements. Whenever amendments have been adopted to the referenced codes and standards, each reference to said code and standard shall be considered to reference the amendments as well. Any reference to NFPA 70 or the ICC Electrical Code shall mean the Electrical Code as adopted. * *Sections 106.6.2 and 106.6.3; change to read as follows: 106.6.2 Fee schedule. The fees for all plumbing work shall be as adopted by resolution of the governing body of the jurisdiction. 106.6.3 Fee Refunds. The code official shall establish a policy for authorizing the refunding of fees. (Delete balance of section} * *Section 109; Delete entire section and insert the following: SECTION 109 North Central Texas Council of Governments 20 February 11, 20152012 IBC Amendments MEANS OF APPEAL 109.1 Application for appeal. Any person shall have the right to appeal a decision of the code official to the board of appeals established by ordinance. The board shall be governed by the enabling ordinance. * *Section 305.6.1; change to read as follows: 305.6.1 Sewer depth. Building sewers shall be a minimum of 12 inches (304 mm) below grade. * *Section 305.9; change to read as follows: 305.9 Protection of components of plumbing system. Components of a plumbing system installed within 3 feet along alleyways, driveways, parking garages or other locations in a manner in which they would be exposed to damage shall be recessed into the wall or otherwise protected in an approved manner. ** *Section 314.2.1; change to read as follows: 314.2.1 Condensate disposal. Condensate from all cooling coils and evaporators shall be conveyed from the drain pan outlet to an approved place of disposal.... {text unchanged} ... Condensate shall not discharge into a street, alley, sidewalk, rooftop, or other areas so as to cause a nuisance. ** *Section 314.2.2; change to read as follows: 314.2.2 Drain pipe materials and sizes. Components of the condensate disposal system shall be cast iron, galvanized steel, copper, cross - linked polyethylene, polyethylene, ABS, CPVC, or schedule 80 PVC pipe or tubing when exposed to ultra violet light. All components shall be selected for the pressure, temperature and exposure rating of the installation. Joints and connections shall be made in accordance with the applicable provisions of Chapter 7 relative to the material type. Condensate waste and drain line size shall not be less than 3/4 -inch (19 mm) internal diameter and shall not decrease in size from the drain pan connection to the place of condensate disposal. Where the drain pipes from more than one unit are manifolded together for condensate drainage, the pipe or tubing shall be sized in accordance with Table 314.2.2. ** *Section 401.1; add a sentence to read as follows: 401.1 Scope. This chapter shall govern the materials, design and installation of plumbing fixtures, faucets and fixture fittings in accordance with the type of occupancy, and shall provide for the minimum number of fixtures for various types of occupancies. The provisions of this Chapter coordinate with the provisions of the Building Code. Should any conflicts arise between the two chapters, the Code Official shall determine which provision applies. * *Section 405.6; delete. * *Section 409.2; change to read as follows: 409.2 Water connection. The water supply to a commercial dishwashing machine shall be protected against backflow by an air gap or backflow preventer in accordance with Section 608. Section 410.1; change to read as follows: 410.1 Approval. {existing text unchanged } ... In other occupancies, where drinking fountains are required, water coolers or bottled water dispensers shall be permitted to be substituted for all required drinking fountains. Drinking water shall be provided at no cost. North Central Texas Council of Governments 21 February 11, 20152012 IBC Amendments * *Section 412.4; change to read as follows: 412.4 Required location. Floor drains shall be installed in the following areas. 1. In public coin- operated laundries and in the central washing facilities of multiple family dwellings, the rooms containing automatic clothes washers shall be provided with floor drains located to readily drain the entire floor area. Such drains shall have a minimum outlet of not less than 3 inches (76 mm) in diameter. 2. Commercial kitchens. In lieu of floor drains in commercial kitchens, the code official may accept floor sinks. 3. Public restrooms. * *Section 419.3; change to read as follows: 419.3 Surrounding material. Wall and floor space to a point 2 feet (610 mm) in front of a urinal lip and 4 feet (1219 mm) above the floor and at least 2 feet (610 mm) to each side of the urinal shall be waterproofed with a smooth, readily cleanable, hard, nonabsorbent material. * *Section 502.6; Add Section 502.6 to read as follows: 502.6 Water heaters above ground or floor. When the attic, roof, mezzanine or platform in which a water heater is installed is more than eight (8) feet (2438 mm) above the ground or floor level, it shall be made accessible by a stairway or permanent ladder fastened to the building. (Add the following) Water heaters of any type shall not be installed within attics; with the exception of replacement of existing water heaters. Exception: A max 10 gallon water heater (or larger with approval) is capable of being accessed through a lay -in ceiling and a water heater is installed is not more than ten (10) feet (3048 mm) above the ground or floor level and may be reached with a portable ladder. 502.6.1 Illumination and convenience outlet. Whenever the mezzanine or platform is not adequately lighted or access to a receptacle outlet is not obtainable from the main level, lighting and a receptacle outlet shall be provided in accordance with Section 502.1. * *Section 504.6; change to read as follows: 504.6 Requirements for discharge piping. The discharge piping serving a pressure relief valve, temperature relief valve or combination thereof shall: 1. Not be directly connected to the drainage system. 2. Discharge through an air gap. 3. Not be smaller than the diameter of the outlet of the valve served and shall discharge full size to the air gap. 4. Serve a single relief device and shall not connect to piping serving any other relief device or equipment. Exception: Multiple relief devices may be installed to a single T & P discharge piping system when approved by the administrative authority and permitted by the manufactures installation instructions and installed with those instructions. North Central Texas Council of Governments 22 February 11, 20152012 IBC Amendments 5. Discharge to an indirect waste receptor or to the outdoors. Where discharging to the outdoors in areas subject to freezing, discharge piping shall be first piped to an indirect waste receptor through an air gap located in a conditioned area. 6. Discharge in a manner that does not cause personal injury or structural damage. 7. Discharge to a termination point that is readily observable by the building occupants. 8. Not be trapped. 9. Be installed so as to flow by gravity. 10. Not terminate less than 6 inches or more than 24 inches (152 mm) above grade nor more than 6 inches above the waste receptor. 11. Not have a threaded connection at the end of such piping. 12. Not have valves or tee fittings. 13. Be constructed of CPVC, Copper, Ductile iron, Galvanized steel, or Stainless steel. * *Section 604.4; add Section 604.4.1 to read as follows: 604.4.1 State maximum flow rate. Where the State mandated maximum flow rate is more restrictive than those of this section, the State flow rate shall take precedence. ** *Section 604.8; add Section 604.8.3 to read as follows: 604.8.3 Thermal expansion control. An expansion tank or approved device shall be installed for the water heater with the addition of a pressure reducing valve or regulator creating a closed system. * *Section 606.1; delete items #3, #4, and #5. * *Section 606.2; change to read as follows: 606.2 Location of shutoff valves. Shutoff valves shall be installed in the following locations: 1. On the fixture supply to each plumbing fixture other than bathtubs and showers in one- and two - family residential occupancies, and other than in individual sleeping units that are provided with unit shutoff valves in hotels, motels, boarding houses and similar occupancies. 2. On the water supply pipe to each appliance or mechanical equipment. * *Section 608.1; change to read as follows: 608.1 General. A potable water supply system shall be designed, installed and maintained in such a manner so as to prevent contamination from nonpotable liquids, solids or gases being introduced into the potable water supply through cross - connections or any other piping connections to the system. Backflow preventer applications shall conform to applicable local regulations, Table 608.1, and as specifically stated in Sections 608.2 through 608.16.10. ** *Section 608.17; change to read as follows: North Central Texas Council of Governments 23 February 11, 20152012 IBC Amendments 608.17 Protection of individual water supplies. An individual water supply shall be located and constructed so as to be safeguarded against contamination in accordance with applicable local regulations. Installation shall be in accordance with Sections 608.17.1 through 608.17.8. * *Section 610.1; add exception to read as follows: 610.1 General. New or repaired potable water systems shall be purged of deleterious matter and disinfected prior to utilization. The method to be followed shall be that prescribed by the health authority or water purveyor having jurisdiction or, in the absence of a prescribed method, the procedure described in either AWWA C651 or AWWA C652, or as described in this section. This requirement shall apply to "on- site" or "inplant" fabrication of a system or to a modular portion of a system. 1. The pipe system shall be flushed with clean, potable water until dirty water does not appear at the points of outlet. 2. The system or part thereof shall be filled with a water /chlorine solution containing at least 50 parts per million (50 mg /L) of chlorine, and the system or part thereof shall be valved off and allowed to stand for 24 hours; or the system or part thereof shall be filled with a water /chlorine solution containing at least 200 parts per million (200 mg /L) of chlorine and allowed to stand for 3 hours. 3. Following the required standing time, the system shall be flushed with clean potable water until the chlorine is purged from the system. 4. The procedure shall be repeated where shown by a bacteriological examination that contamination remains present in the system. Exception: With prior approval the Code Official may wave this requirement when deemed un- necessary. Section 708.3.5 and 708.3.7; add new sections to read as follows: 708.3.5 Building drain and building sewer junction. (Existing section with no changes} ...All building cleanouts subject to vehicular damage shall be cast iron. 708.3.7 Materials. All building cleanouts subject to vehicular damage shall be cast iron. ** *Section 712; change to read as follows: 712.3.3.1 Materials. Pipe and fitting materials shall be constructed of brass, copper, CPVC, ductile iron, stainless steel, galvanized iron, PE, or PVC. * *Section 712.5; add Section 712.5 to read as follows: 712.5 Dual Pump System. All sumps shall be automatically discharged and, when in any "public use" occupancy where the sump serves more than 10 fixture units, shall be provided with dual pumps or ejectors arranged to function independently in case of overload or mechanical failure. For storm drainage sumps and pumping systems, see Section 1113. * *Section 714, 714.1; change to read as follows: SECTION 714 ENGINEERED DRAINAGE DESIGN 714.1 Design of drainage system. The sizing, design and layout of the drainage system shall be permitted to be designed by approved design methods. North Central Texas Council of Governments 24 February 11, 20152012 IBC Amendments * *Section 802.4; add a sentence to the end of the paragraph to read as follows: 802.4 Standpipes. Standpipes shall be... (text unchanged} ...drains for rodding. No standpipe shall be installed below the ground. * *Section 903.1; change to read as follows: 903.1 Roof extension. All open vent pipes that extend through a roof shall be terminated at least six (6) inches (152 mm) above the roof, except that where a roof is to be used for any purpose other than weather protection, the vent extensions shall be run at least 7 feet (2134 mm) above the roof. * *Section 1002.10; delete. Section 1003.1; added to read as follows: Minimum construction standards for food service establishments are required when: A new building with a food service establishment is constructed and occupied; 2. Prior to the issuance of a certificate of occupancy for a new food service establishment in an existing structure which has not been previously used as a food service establishment within the last six (6) months, or has been used as a food service establishment without an adequately sized grease interceptor; or. 3. When a change to a more restrictive class of food service establishment occurs. Heavy Food Preparation: shall mean any area in which foods are prepared utilizing a grill, griddle, deep - fat fryer, commercial type ovens, and /or any similar food preparation equipment; or any area subject to flooding type of wet cleaning procedures due to the cutting or processing of meat, poultry, fish or pork. Heavy food preparation includes but is not limited to: cafeterias, fast food restaurant, full service restaurants, pizza preparation, donut preparation, and meat and fish markets, etc. either a minimum 750 - gallon grease interceptor is required for heavy food preparation establishments with *seating capacity for 50 or more; or a minimum 250 - gallon grease interceptor is required for heavy food preparation establishments with a *seating capacity for less than 50 or take -out food service establishments; or the minimum size shall be established by the currently adopted International Plumbing Code; whichever is more stringent. Light Food Preparation: shall mean any area in which foods are prepared exclusive of the use of fryers, grills or similar equipment. Light food preparation is usually limited to the preparation of hot dogs, sandwiches, salads or other similar foods and fountain -type cold drinks. Light food preparation includes, but is not limited to, sandwich shops, limited menu concession stands, etc. Either a minimum 250 - gallon grease interceptor is required for light food preparation establishments with *seating capacity for 50 or more; or a minimum 20 gpm flow- through rating or 40 -pound retention capacity grease trap is required for light food preparation establishments with a *seating capacity for less than 50 or take -out food service establishments; or the minimum size shall be established by the currently adopted International Plumbing Code; whichever is more stringent. No Food Preparation: shall mean any area in which foods are provided pre - wrapped, from an approved source, with microwave oven type heating being the maximum handling involved. No food preparation is limited to pre - packaged sandwiches or similar foods, candies and containerized beverages. A grease interceptor is not required for "no food preparation" establishments. Food service establishments shall not share grease interceptors unless specifically authorized by the Building Official. *Seating Capacity is measured using Section 1004.7 Fixed Seating and Table 1004.1.1 Maximum Floor Area Allowances per Occupant found in the currently adopted version of the International Building Code. * *Section 1106.1; change to read as follows: North Central Texas Council of Governments 25 February 11, 20152012 IBC Amendments 1106.1 General. The size of the vertical conductors and leaders, building storm drains, building storm sewers, and any horizontal branches of such drains or sewers shall be based on six (6) inches per hour rainfallrate. ** *Section 1107.3; change to read as follows: 1107.3 Sizing of secondary drains. Secondary (emergency) roof drain systems shall be sized in accordance with Section 1106. Scuppers shall be sized to prevent the depth of ponding water from exceeding that for which the roof was designed as determined by Section 1101.7. Scuppers shall not have an opening dimension of less than 4 inches (102 mm). The flow through the primary system shall not be considered when sizing the secondary roof drain system. ** *Section 1202.1; delete Exception 2. END SECTION 6. Section 28 -252 of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows. 28 -252. Deletions and Amendments. Amendments to the 2009 International Mechanical Code * *Section 102.8; change to read as follows: 102.8 Referenced codes and standards. The codes and standards referenced herein shall be those that are listed in Chapter 15 and such codes, when specifically adopted, and standards shall be considered part of the requirements of this code to the prescribed extent of each such reference. Where differences occur between provisions of this code and the referenced standards, the provisions of this code shall apply. Whenever amendments have been adopted to the referenced codes and standards, each reference to said code and standard shall be considered to reference the amendments as well. Any reference to NFPA 70 or the ICC Electrical Code shall mean the Electrical Code as adopted. ** *Section 306.3; change to read as follows: 306.3 Appliances in attics. Attics containing appliances requiring access shall be provided ... fbulk of paragraph unchanged} ... side of the appliance. The clear access opening dimensions shall be a minimum of 20 inches by 30 inches (508 mm by 762 mm), or larger where such dimensions are not large enough to allow removal of the largest appliance. As a minimum, for access to the attic space, provide one of the following: 1. A permanent stair. 2. A pull down stair with a minimum 300 lb (136 kg) capacity. 3. An access door from an upper floor level. 4. (Delete) Water heaters of any type shall not be installed within attics; with the exception of replacement of existing water heaters. Exceptions: 1. The passageway and level service space are not required where the appliance is capable North Central Texas Council of Governments 26 February 11, 20152012 IBC Amendments of being serviced and removed... (remainder of section unchanged} * *Section 306; add Section 306.6 to read as follows: 306.6 Water heaters above ground or floor. When the mezzanine or platform in which a water heater is installed is more than eight (8) feet (2438 mm) above the ground or floor level, it shall be made accessible by a stairway or permanent ladder fastened to the building. Exception: A max 10 gallon water heater (or larger with approval) is capable of being accessed through a lay -in ceiling and a water heater is installed is not more than ten (10) feet (3048 mm) above the ground or floor level and may be reached with a portable ladder. 306.6.1 Whenever the mezzanine or platform is not adequately lighted or access to a receptacle outlet is not obtainable from the main level, lighting and a receptacle outlet shall be provided in accordance with Section 306.3.1. * *Section 307.2.3; amend item 2 to read as follows: 2. A separate overflow drain line shall be connected to the drain pan provided with the equipment. Such overflow drain shall discharge to a conspicuous point of disposal to alert occupants in the event of a stoppage of the primary drain. The overflow drain line shall connect to the drain pan at a higher level than the primary drain connection. However, the conspicuous point shall not create a hazard such as dripping over a walking surface or other areas so as to create a nuisance. END SECTION 2. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provision or applications, and to this end the provision of this ordinance are severable. SECTION 3. All provisions of the ordinances of the City of Denton in conflict with the provision of this ordinance are hereby repealed, and all other provisions of the ordinances of the City or Denton, not in conflict with the provision of this ordinance, shall remain in full force and effect. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not to exceed two thousand dollars ($2,000.00). Each day that a provision of this Ordinance is violated shall constitute a separate and distinct offence. SECTION 5. This ordinance shall become effective and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY fflu North Central Texas Council of Governments 27 February 11, 20152012 IBC Amendments APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY M North Central Texas Council of Governments 28 February 11, 20152012 IBC Amendments City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -093, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071 Discuss, deliberate, and receive further information regarding the purchase of certain real property interest located in the R. H. Hopkins Survey, Abstract No. 1694, City of Denton, Denton County, Texas, and generally located along the 1800 block of Colorado Boulevard and the 1500 block of Angelina Bend Drive. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Township 11 Park Property Acquisition Project [Greenbelt Tracts] & [File ID 15 -094 Richland Plantation Partners Inc.]) City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -154, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding granting economic development incentives to Peterbilt Motors Company with respect to expansion of a manufacturing facility. This discussion shall include commercial and financial information the City Council has received from Peterbilt Motors Company which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. [File ID 15 -115] City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -010, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087 Consult with and provide direction to City's attorneys regarding legal issues associated with the use of hotel/motel occupancy tax funds for Convention Center projects, 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. Also hold a discussion regarding granting economic development incentives for Convention Center projects which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -068, Version: 1 Agenda Information Sheet SUBJECT Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding support, implementation and operation of its Energy Risk Management Policy that deals with bidding and pricing information for purchased power, generation and fuel, and Electric Reliability Council of Texas (ERCOT) bids, prices, offers and related services and strategies. Consultation with the City's attorneys regarding legal issues associated with the Energy Risk Management Policy where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any potential litigation. Discuss, deliberate, and provide staff with direction. City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -143, Version: 1 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 the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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; current and proposed extension to, moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; 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 ordinance and pending litigation styled Jerry Patterson, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. D- 1- GN -14- 004628 currently pending in the 53rd District Court of Travis County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 09833 -431 currently pending in the 431st District Court of Denton County 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 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -111, Version: 1 Agenda Information Sheet SUBJECT World Rotary Day City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -118, Version: 1 Agenda Information Sheet SUBJECT Beulah Harriss Day City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -127, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Gerald DeMarsh regarding no trespassing at the Senior Center. City of Denton Page 1 of 1 Printed on 2/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -083, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $142,000 of in- kind services and resources for the Denton Arts and Jazz Festival to be held in Quakertown Park on April 24 - 26, 2015; and providing an effective date. BACKGROUND The Denton Arts and Jazz Festival is organized by the Denton Festival Foundation. Last year, the City Council authorized up to $123,000 of in -kind services and resources for the event. In addition, the Denton Festival Foundation received $82,820 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, the Denton Festival Foundation will receive $86,961 in HOT funds. The in -kind services and resources provided to Denton Festival Foundation include staff, equipment, supplies, and facilities. The City provided 959 hours of security and 921.5 hours of park maintenance support during the 2014 event; and the use of the Civic Center, Quakertown Park, and the Senior Center at no charge. The actual cost to support this event in 2014 was $140,503, which was $17,503 more than was authorized by the City Council (Exhibit 1). The increase in cost is due in part to the Denton Festival Foundation relocating the main stage from the south side of Quakertown Park to the north side of the park. This change in stage locations, and increased attendance, resulted in the Parks and Recreation staff working additional hours to clean both sides of the park simultaneously after the audience vacated the park. To support this three -day event at the current level, staff estimates the 2015 cost will be approximately $142,000. The cost estimate is based on clear weather; if inclement weather occurs, the staffing and supply cost will increase dramatically as staff will need to purchase and lay down mulch in the park during the event. The Denton Arts and Jazz Festival expects to have 260 vendors and estimates 225,000 people will attend the three -day event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind services and resources request up to $142,000. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -083, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 1, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $123,000 under Ordinance No. 2014 -093. On February 3, 2015, the City Council received a report and gave staff direction to move forward with the sponsorship request. FISCAL INFORMATION In 2015, Denton Festival Foundation will receive $86,961 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $142,000. The total cost of in -kind services and resources, facilities, and HOT funds is $228,961 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $297,808 in City support to three of the eight previously sponsored special events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 In -Kind Costs 2. Running Total of Requested Support for Special Events 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Arts and Jazz Festival Exhibit 1 2014 vs. 2013 Costs 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In -Kind Costs PARD Staff $ 12,993 $ 25,320 City Facilities $ 15,125 Park Fee $ 24,000 Equipment & Supplies $ 9,573 Parks and Recreation $ 12,993 $ 25,320 $ 9,573 $ 39,125 $ 87,011 Police $ 47,550 $ 47,550 Solid Waste/ Recycling $ 5,942 $ 5,942 Total $ 12,993 $ 72,870 $ 9,573 $ 45,067 $ 140,503 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In -Kind Costs PARD Staff $ 7,432 $ 17,603 City Facilities $ 15,125 Park Fee $ 24,000 Equipment & Supplies $ 5,900 Parks and Recreation $ 7,432 $ 17,603 $ 5,900 $ 39,125 $ 70,060 Police $ 47,195 $ 47,195 Solid Waste/ Recycling $ 5,520 $ 5,520 Total 7,432 $ 64,798 $ 5,900 $ 44,645 $ 122,775 G_ � � w m 0 � _ � � 4� \ _ � 0 � C4- 0 � 0 � W a3 .g 0 H � � q ,q / F-11 � 0 N ct 0 � ct u � � k \ cp Lr g w 't / q % w S § \ � � ƒ � s � J + § \ § � � 0 � Lr \ � 7� oq o77 � t m � ƒ 2 � o m � 7 � � % \ » 2 + § § I 'J N 1�I N azz . .I. VII-IF " E) tci llFestiva.11 Foundation, Inc. IRO. Box 21.04 1)e nnton~np (-n xa: s 76202 Fax (940) 5667007 Exhibit 3 November 7, 2014 Janie McLeod Emerson Vorel 601 E. Hickory Suite B Denton, Texas 76205 Dear Janie & Emerson, The Denton Festival Foundation, Inc. is requesting that the City of Denton be a major sponsor of the annual Denton Arts & Jazz Festival. The support and man hours supplied from Parks & Recreation and other city departments through in -kind services is our most important sponsorship for a successful event. We are proud and appreciate this partnership and look forward to your expertise, advice and services that complement our planning and production. The dates for the Denton Arts & Jazz Festival are April 24, 25 & 26, 2015. There are no significant changes at this time regarding facilities and logistics at Quakertown Park. The Denton Festival Foundation will work closely with all city departments for additional needs for the upcoming event and will continue to meet our obligations as required by the City of Denton. Sincerely, Carol Short, Executive Director SALegal\Our Documents\Ordinances\15\Arts and Jazz Festival Sponsorship.doex.doc Exhibit 4 3 1611J'11 0 AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $142,000 OF IN-KIND SERVICES AND RESOURCES FOR THE DENTON ARTS AND JAZZ FESTIVAL TO BE HELD IN QUAKERTOWN PARK ON APRIL 24-26, 2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Denton Arts and Jazz Festival is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in Quakertown Park on April 24-26, 2015; and WHEREAS, the City of Denton has sponsored up to $123,000 of in-kind services and supplies for the 2014 event which included police, park staff, equipment, supplies, and facilities; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $142,000 of in- kind services for the event to be held in Quakertown Park on April 24-26, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $142,000 of in- kind services and supplies, including but not limited to police, park staff, equipment, supplies and facilities, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR S:\Lega]\Our Documents\Ordinances1 1 5\Arts and Jazz Festival Sponsorship.doex.doc Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY I' APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -094, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM/ ACM: John Cabrales Date: February 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute a Contract of Sale (herein so called), as attached thereto and made a part thereof as Exhibit "A ", by and between Richland Plantation Partners, Inc., a Delaware corporation as Owner (herein so called), and the City of Denton, Texas, a Home Ruled Municipal Corporation, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 1.1 acre tract, more or less, known as "Greenbelt" in Block B, subdivision plat of Township II, Phase 2, recorded in Volume 11, Page 14, Plat Records Denton County, Texas, located generally along the south side of the formerly contemplated extension of San Gabriel Drive, in the City of Denton, Denton County, Texas and a .17 acre tract, more or less, situated in the R. H. Hopkins Survey, Abstract No. 1694, located in the City of Denton, Denton County, Texas, generally located adjacent to 1900 Spencer Rd., City of Denton, Denton County, Texas as more particularly described in the Contract of Sale, (the "Property Interests "), for the purchase price of Twenty One Thousand Eight Hundred Fifty One Dollars and No Cents ($21,851.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. (Township II Park Property Acquisition project: Greenbelt South- Tract 3 [Richland Plantation Partners, Inc.]) BACKGROUND Citizen inquiries began (1993) regarding the disposition of greenbelt tracts running from Colorado to just south of San Gabriel Dr. City staff has researched ownership and clarified the disposition of the ownership of four tracts, presenting findings to City Council. In 2012 a Keep Denton Beautiful group was created with the intent of creating a community garden on a portion of the greenbelt. The owner of the site, bordered on the north by what was formerly contemplated as an extension of San Gabriel Drive, has offered to sell the property to the City. Approval of the subject ordinance authorizes staff to acquire the land rights necessary to start the acquisition of the first of four tracts identified for park land. Negotiations with the owner resulted in an offer to include in this transaction, an additional parcel to the City. The .17 acre parcel is orphaned; land locked and inaccessible to the owner. The Owner's offer to include it as a secondary tract is at the current appraised value by Denton Central Appraisal District ($1,851.00). The tract is contiguous with City owned 1.82 acre buffer tract across from the Municipal Utility Addition and is proposed to be assembled to that City owned property. The secondary tract, reflected as Tract 2 on the attachment to the Contract of Sale will be DME acquired and not park property. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -094, Version: 1 OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) September 17, 2013 - City Council Closed Session November 3, 2014 - City Council Closed Session FISCAL INFORMATION The overall Township II Park Property Acquisition project is being funded with 915 funds. The $1,851.00 cost for the additional tract will be funded through DME. EXHIBITS 1. Location Map 2. Ordinance (Contract of Sale Attached) Respectfully submitted: Emerson Vorel Director, Parks and Recreation Prepared by: LuAnne Oldham Real Estate Specialist City of Denton Page 2 of 2 Printed on 2/12/2015 LOCATION MAP . . . . . . . ... 0 OAV ),0 Y, L EE E r T/F1L LAGR"( E .. . ....... owntown Denton,,,,,,,,,[ CA. .... . .................. 7 .... . . . ........................ . R A R E 0 "d ------ ... :/ z ORSE z -10 . ......... C.0L fl-f S UJ, z S 1�iIAH TI-i A'f E D"') 1,J G 1-1111, GRE ........ r ........ S A "A FE W/f.,Dt "U"Il — - -------- P N "A E n I" MIVATE' Greenbelt South 1 . 1 acre tract L 1DME assemblage .17 acre . . . . . . . . . . . R11- N Township 11 W-- *- E Greenbelt Tracts S 1,100 550 0 1,100 2,200 Exhibit 1 to the CC A IS ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A CONTRACT OF SALE (HEREIN SO CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A ", BY AND BETWEEN RICHLAND PLANTATION PARTNERS INC., A DELAWARE CORPORATION AS OWNER (HEREIN SO CALLED), AND THE CITY OF DENTON, TEXAS, A HOME RULED MUNICIPAL CORPORATION, AS BUYER, REGARDING THE SALE AND PURCHASE OF FEE SIMPLE TO TWO TRACTS IDENTIFIED AS A 1.1 ACRE TRACT, MORE OR LESS, KNOWN AS "GREENBELT" IN BLOCK B, SUBDIVISION PLAT OF TOWNSHIP II, PHASE 2, RECORDED IN VOLUME 11, PAGE 14, PLAT RECORDS DENTON COUNTY, TEXAS, LOCATED GENERALLY ALONG THE SOUTH SIDE OF THE FORMERLY CONTEMPLATED EXTENSION OF SAN GABRIEL DRIVE, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS AND A .17 ACRE TRACT, MORE OR LESS, SITUATED IN THE R.H. HOPKINS SURVEY, ABSTRACT NO. 1694, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, GENERALLY LOCATED ADJACENT TO 1900 SPENCER RD, CITY OF DENTON, DENTON COUNTY, TEXAS AS MORE PARTICULARLY DESCRIBED IN THE CONTRACT OF SALE, (THE "PROPERTY INTERESTS "), FOR THE PURCHASE PRICE OF TWENTY ONE THOUSAND EIGHT HUNDRED FIFTY ONE DOLLARS AND NO CENTS ($21,851.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1.. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $21,851.00, plus certain costs, as prescribed in the Contract of Sale; and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2.. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. EXHIBIT 2 - AIS SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY EXHIBIT 2 - AIS EXHIBIT "A" to Ordinance O:AREAL ESTATE \Township II\Township 11 Tract 3- Contract of Sale - Revisions by LO 020615 - FINAL LCC.doc STATE OF TEXAS § COUNTY OF DENTON § CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract ") is made this day of , 2015, effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date "), by and between Richland Plantation Partners Inc., a Delaware corporation (referred to herein as "Seller ") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns that certain tract of land being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. EXHIBIT 2 - AIS ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Twenty One Thousand Eight Hundred and Fifty One and No /100 Dollars ($21,851.00) (the "Purchase Price "). 2.02 Earnest Money. Intentionally deleted. 2.03 Independent Contract Consideration. Intentionally deleted. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Intentionally deleted. 3.02 Survey. Intentionally deleted. 3.03 Review of Title Commitment, Survey and Exception Documents. Intentionally deleted. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. Intentionally deleted. 3.05 Title Policy. Intentionally deleted. 3.06 Escrow Close. Close of escrow, without benefit of title policy, shall occur at the offices of Title Resources 525 South Loop 288, Suite 125, Denton, TX 76205 -4515, Virginia Kubiak, Escrow Officer (940)381 -1006. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending forty five (45) calendar days thereafter (the "Absolute Review Period "), based on such appraisals, tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended 2 EXHIBIT 2 - AIS use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller, if requested by Seller, copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property, except the following: Tax Suit filed June 26, 2002, in 158th Court, Denton County, Texas, Cause No. 2002 - 0572 -158, styled CITY OF DENTON, COUNTY OF DENTON, DENTON COUNTY EDUCATION DISTRICT and DENTON ISD vs. DENTON RESIDENTIAL N.V. (f) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject 3 EXHIBIT 2 - AIS to no such liens, with the express exception of- Tax Suit disclosed under Article V, 5.01(e) above, which suit shall be fully paid and released as a condition precedent to the funding of the purchase contemplated by this Contract. (g) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (h) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property, including without limitation, all personal property of any such tenants or parties, on or before the date of Closing. (i) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Within ten (10) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease agreements and /or occupancy agreements and /or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing, or claims related thereto, concerning or affecting the Property. M EXHIBIT 2 - AIS (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. (d) On or before Closing, Seller shall remove (i) any waste material or debris that are located upon, or may accumulate or otherwise be placed on the Property (the "Waste Material "), from the Property and dispose of same in accordance with all applicable statutes, regulations, rules, orders and ordinances; and (ii) all personal property from the Property. It is expressly stipulated that (i) the Waste Material shall be deemed at all times the property of Seller; and (ii) Buyer may retain, destroy, or dispose of any property, of any kind or type, left or remaining on the Property at Closing (the "Abandoned Property "), without liability of any kind to Buyer and without payment of consideration of any kind to Seller. In the event Buyer shall elect to store said Abandoned Property, Buyer may store such Abandoned Property in the name, and at the expense, of Buyer. 5.02.A. Warranty of Buyer; Property Condition. Buyer represents and warrants to Seller that it has made, or will make prior to Closing, an independent inspection and evaluation of the Property and acknowledges that Seller has made no statements or representations concerning the present or future value of the Property, or the condition, including the environmental condition, of the Property. Except as otherwise specifically represented and warranted by Seller in this Contract, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY, QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, AND /OR MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Buyer further acknowledges that it has relied solely upon its independent evaluation and examination of the Property, and public records relating to the Property and the independent evaluations and studies based thereon. Seller makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Buyer, if any, whether furnished by Seller or any third party. Seller assumes no liability for the accuracy, completeness or usefulness of any material 5 EXHIBIT 2 - AIS furnished by Seller, if any, and /or any other person or party. Reliance on any material so furnished is expressly disclaimed by Buyer, and shall not give rise to any cause, claim or action against Seller. THE CONVEYANCE OF THE PROPERTY SHALL BE ON A "WHERE IS ", "AS IS ", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED, AS TO THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY, OR FITNESS FOR PURPOSE OR MERCHANTABILITY. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Intentionally deleted. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned by an entity other than Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6 EXHIBIT 2 - AIS 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of Title Resources as referenced in Article III, 3.06, and shall be accomplished through an exchange of purchase money and documents as provided in Article VII, 702(a) (b). The Closing Date (herein sometimes called), shall be thirty (30) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer, at the expense of the party designated herein, the following items: The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; Evidence of payment and release of Tax Suit filed June 26, 2002, in 158th Court, Denton County, Texas, Cause No. 2002 - 0572 -158, styled CITY OF DENTON, COUNTY OF DENTON, DENTON COUNTY EDUCATION DISTRICT and DENTON ISD vs. DENTON RESIDENTIAL N.V. (the "Tax Suit "). Payment of sums necessary to fully discharge and release the Tax Suit shall be withheld from the amount due Seller and paid from Sellers funds at escrow close. (b) Buyer. At the Closing, Buyer shall deliver to Seller the following: The sum required by Article II, Section 2.01, in the form of a check or cashier's check or other immediately available funds. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in 7 EXHIBIT 2 - AIS this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Taxing Authority with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated and submitted by Seller to the Denton County Tax Assessor as of the Closing Date. Ad valorem tax for the calendar year in which the Closing shall occur shall be tendered under Texas Property Tax Code Section 26.11. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying all other fees, costs and expenses related to Closing. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. 8 EXHIBIT 2 - AIS (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller. (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens or encumbrances; and (iii) Seek other recourse or relief as may be available to Buyer at or by law, equity, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may, at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered and received, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Richland Plantation Partners, Inc. Attn: Gordon A. Edwards 7001 Preston Road, Suite 410 Dallas, TX 75205 EXHIBIT 2 - AIS BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 9 Copies to: For Seller: Telecopy: Telecopy: (940) 349 -8951 For Buyer: Larry Collister Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective devisees, heirs, successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive (i) in the case of damage, all insurance proceeds, if any; and (ii) in the case of eminent domain, all proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage to the Property, in which to make Buyer's election. In the event Buyer elects to close prior to such final settlement, then the Closing shall 10 EXHIBIT 2 - AIS t',ake place as pn,")%,ided in Article V11, al.)ok,,'e, and th�.re stu,,dl be"�'-'issigried by Scllc�,,r to ffi�tlyer' at (",71osing, in fbrn), and sub Mance Wshmwy to BUY01 A imemms of SO& in and mi uny, ,.,,-,ind Al insur,,ince proceeds, ar, a�Aardsi which M12.1,y be paynible U) Seller on zwcount of mwh CMIL In the event Buyer Am 1c) close upon this Contract after final, settlen,"ient, as described a'above, (71o,sing shall iru4° hek! Hve (5) bushmss days after sudi Gal sodernem, %106 Further Assiarances, In, ad1don to Te and deleds ro.,JteR� in this C"onn-act mid contempimedho be pUmmed, executed and/c)r dchven.,xi by Sellers, and Buyer', Seller W Buyer agree to pertnn, execute anWor delkar,, or cause to be ext"�u, -uw[ m0br rlehvrwm°e r tlre C'Iosbg m afia—lie Ming, any fUnber deeds, acts. aml i]Ssljl'WlCes aS al"e, FeNasonably necessary to constui:umatt" thic hereftm y, NcowiammnWng any hWg to the contrary in this Contract and %,Othoul firn,iting the genier,,,il apokadon of th,e r�r(�wvisjons of'Section 5.03, a:bovt,-,,,1 proOsiom,,', of dds ArHde M Section 9.016 shall %07 "rhue b of aje ja ",sscrice, it is, expressly agr,et;-'�dl Buyer and Seller tlaat linic is of the evence i%,iffi to this Comm 9M8 ExhNks, Ile Exhibits %which ak; relbrenced ht,,, and attached to this Onitract, irr and nude a pan of, this C�ion.traf,:t afl,, 9.09 Delegalion of Auttiority, Authority' to %e any acdons Ht am to A or nay be, uikt-n by Buyw„�r urider this Contract, including withma lin&AwL aQummem of We CONg EM mv Omby deRgued by Buyeq pursuwit to Won by the `qty Auncil ui,f Dezvon, Texwk it) RAns COMO, Bre (it, his rye sigt�ee, 9M) Contract Exectillon. This C'cvmrak.,�� (,,)f Sale inay be execultd in 'Irny nuinbc:rof emnamparry A ofwhkh Ken logaler shA constitt.'ale one aaritl thes.,'arru amp &'e and any of time pates Arm may execm Us Agremnent by MgAng any M coumeTsm, 911 Business array If die Cksizig Date or the day of perl'brIllarICc or, permival under this ("(,mntract falls on, a, Saturday, Si ir'mAay ot, Denv,-.)n ("otaay holiclay, then the Dare or the date of such as the a,ase may, be, shall be dial" itext THoming regWkr bushiess day. SELLER: RICHLAND PLADN'TATIO'N PAR TNEF',,,S,, INC. a Dehi%',arre coxj�)o,r','iriori Fty ___' 11�-PTA iF A Mv- ' Exemded Qy ScHer on the cL of 1,9 t kAK)IL DI T f'3 ( IN E R,,,, B,Y� (.'�JiEOR,GE C. CANIPBELL, cine, N4,ANA(,,,iER Execuied by Buyer on We day of ATrEST., JENNIFER 'A",ALIERS, (11 Y S IH C'R ETA l? , "Y' AN 11,A, 13 UP (iESS � CITY ckT ['()R,,N �EY BY a 2015, Property Interests EXHIBIT "A" to Contract of Sale Legal Description Tract 1 All that certain lot, tract or parcel of land shown as "Greenbelt" on subdivision plat of TOWNSHIP 11, PHASE 2, an Addition to the City of Denton, Texas, according to the plat thereof recorded in Volume 11, Page 14, Plat Records of Denton County, Texas. Being further described as that certain Greenbelt adjacent to Lot 5, Block B, TOWNSHIP II, PHASE 2, on its easternmost line, being bordered on the Northerly line by a tract of land contemplated as the extension of San Gabriel Drive, all being part of Township 11, Phase 2 recorded in Volume 11, Page 14, Plat Records, of Denton County, Texas. Additionally being located as bordered on the westerly line by Lot 1, Block B, TOWNSHIP II, PHASE 1, an Addition to the City of Denton, Texas, according to the Plat thereof recorded in Volume 9, Page 38, Plat Records, Denton County, Texas. Shown as 1.1 acre and identified as Property ID 4 76808 Denton Central Appraisal District Tract 2 BEING all that certain tract or parcel of land situated in the R. H. Hopkins Survey, Abstract No. 1694, Denton County, Texas, located in the East - Northeast corner of the R. H. Hopkins Survey, Abstract No. 1694, and being that portion of this George Hopkins, et al property, lying Northeast of the cut -off by the M -K -T Railroad, and being more particularly described as follows: BEGINNING at a fence corner at the East - Northeast corner of said Hopkins Survey; THENCE S 10 01' 30" E with a fence on an East line of said Hopkins Survey 128.46 feet to a corner on the northeast right -of -way of said Railroad; THENCE N 420 05' W, with said right -of -way 176.21 feet to a corner on a North line of said Hopkins Survey; THENCE S 880 50' 30" E with a fence on said North line 115.82 feet to the Place of Beginning. Shown as a .17 acre tract and identified as Property ID4 164819 Denton Central Appraisal District 13 EXHIBIT 2 - AIS EXHIBIT `B" TO CONTRACT OF SALE NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS That Richland Plantation Partners Inc., a Delaware corporation (referred to herein as "Seller "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] 14 EXHIBIT 2 - AIS Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. Grantee represents and warrants to Grantor that it has made an independent inspection and evaluation of the Property and acknowledges that Grantor has made no statements or representations concerning the present or future value of the Property, or the condition, including the environmental condition, of the Property. Except as otherwise specifically represented and warranted by Grantor herein and in that certain Contract of Sale, dated , 2015, by and between Grantor and Grantee, GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY, QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, AND /OR MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Grantee further acknowledges that it has relied solely upon its independent evaluation and examination of the Property, and public records relating to the Property and the independent evaluations and studies based thereon. Grantor makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Grantee, if any, whether furnished by Grantor or any third party. Grantor assumes no liability for the accuracy, completeness or usefulness of any material furnished by Grantor, if any, and /or any other person or party. Reliance on any material so furnished is expressly disclaimed by Grantee, and shall not give rise to any cause, claim or action against Grantor. THE CONVEYANCE OF THE PROPERTY IS ON A "WHERE IS ", "AS IS ", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED, AS TO THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE 15 EXHIBIT 2 - AIS PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY, OR FITNESS FOR PURPOSE OR MERCHANTABILITY. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of 12015 RICHLAND PLANTATION PARTNERS, INC. a Delaware corporation By: Its: ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on 2015 by of Richland Plantation Partners, Inc., a Delaware corporation Notary Public, State of Texas My commission expires: 16 EXHIBIT 2 - AIS Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 17 EXHIBIT 2 - AIS Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 Exhibit "A" To Special Warranty Deed Legal Description Tract 1 All that certain lot, tract or parcel of land shown as "Greenbelt" on subdivision plat of TOWNSHIP 11, PHASE 2, an Addition to the City of Denton, Texas, according to the plat thereof recorded in Volume 11, Page 14, Plat Records of Denton County, Texas. Being further described as that certain Greenbelt adjacent to Lot 5, Block B, TOWNSHIP II, PHASE 2, on its easternmost line, being bordered on the Northerly line by a tract of land contemplated as the extension of San Gabriel Drive, all being part of Township 11, Phase 2 recorded in Volume 11, Page 14, Plat Records, of Denton County, Texas. Additionally being located as bordered on the westerly line by Lot 1, Block B, TOWNSHIP II, PHASE 1, an Addition to the City of Denton, Texas, according to the Plat thereof recorded in Volume 9, Page 38, Plat Records, Denton County, Texas. Shown as 1.1 acre and identified as Property ID 4 76808 Denton Central Appraisal District Tract 2 BEING all that certain tract or parcel of land situated in the R. H. Hopkins Survey, Abstract No. 1694, Denton County, Texas, located in the East - Northeast corner of the R. H. Hopkins Survey, Abstract No. 1694, and being that portion of this George Hopkins, et al property, lying Northeast of the cut -off by the M -K -T Railroad, and being more particularly described as follows: BEGINNING at a fence corner at the East - Northeast corner of said Hopkins Survey; THENCE S 10 01' 30" E with a fence on an East line of said Hopkins Survey 128.46 feet to a corner on the northeast right -of -way of said Railroad; THENCE N 420 05' W, with said right -of -way 176.21 feet to a corner on a North line of said Hopkins Survey; THENCE S 880 50' 30" E with a fence on said North line 115.82 feet to the Place of Beginning. Shown as a .17 acre tract and identified as Property ID4 164819 Denton Central Appraisal District 18 EXHIBIT 2 - AIS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -100, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $11,500 of in -kind services and resources for the Denton Cinco de Mayo Festival to be held in Quakertown Park on May 2, 2015; and providing an effective date. BACKGROUND The Denton Cinco de Mayo Festival is organized by community volunteers. Last year, the City Council authorized spending up to $9,500 of in -kind services and resources for the event. In addition, the Denton Cinco de Mayo Festival received $8,400 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, the Denton Cinco de Mayo Festival will receive $8,400 in HOT funds. The in -kind services and resources provided to the Denton Cinco de Mayo Festival include staff, equipment, supplies, and facilities. The City provided 76.5 hours of security and 53.5 hours of park maintenance support during the 2014 event; and the use of the Civic Center and Quakertown Park at no charge. The actual cost to support the 2014 event was $11,038, which was $1,538 more than was authorized by the City Council (Exhibit 1). The increase is related to additional hours worked by City personnel and an improved tracking system in Parks and Recreation. To support this event at the current level, the 2015 cost will be approximately $11,500. The cost estimate is based on clear weather; if inclement weather occurs, the staffing and supply cost will increase dramatically as City staff will need to purchase and lay down mulch in the park during the event. The Denton Cinco de Mayo Festival expects to have 60 vendors and estimates 3,000 people will attend the event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind services and resources request up to $11,500. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 15, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $9,500 under Ordinance No. 2014 -101. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -100, Version: 1 FISCAL INFORMATION In 2015, the Denton Cinco de Mayo Festival will receive $8,400 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $11,500. The total cost of in -kind services, facilities, and HOT funds is $19,900 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $317,708 in City support to four of the eight previously sponsored events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 Costs 2. Running Total of Requested Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Cinco de Mayo 2014 vs. 2013 Costs Exhibit 1 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In -Kind Costs PARD Staff $ 2,592 $ 2,592 City Facilities $ 1,760 $ 1,760 Park Fee $ 3,000 $ 3,000 Parks and Recreation $ 2,592 $ 4,760 $ 7,352 Police $ 90 $ 3,596 $ 3,686 Total $ 90 $ 6,188 $ - $ 4,760 $ 11,038 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In -Kind Costs PARD Staff $ 480 $ 1,540 $ 150 $ 2,170 City Facilities $ 1,840 $ 1,840 Park Fee $ 3,000 $ 3,000 Parks and Recreation $ 480 $ 1,540 $ 150 $ 4,840 $ 7,010 Police $ 2,240 1 $ 2,240 Total $ 480 $ 3,780 $ 150 $ 4,840 $ 9,250 N >C W 3-r O Q., Q., '.d N N a� O N W a3 U N C) '- F-' 4� bA d' O N ct N ct U w O o0 N O o0 00 O N fl Lr ,- Lr l� U o s9 V � 69 bR 69 bR O H � O N � N w O a� a� ti ono oc U 00 A o N oo0 N � 69 69 � 69 Nfl4 03 ti A'In 6M�4 v) tn w o� oc N O O O O bA bR a 4t H a, g�4 A-� UO E* CA C7 To whom it may concern: Exhibit 3 December 9, 2014 I, Blanca Govea, chairperson for the Denton Cinco de Mayo festival, am requesting the City of Denton to be our sponsor for the 2015 festival which will take place on Saturday, May 2, 2015. It has been a great privilege to have the City sponsor our event in the past and am looking forward to your continuous support. If any question may arise, please feel free to call or email me at (940) 594 -9146 or b qovea@hotmail.com. Sincerely, Blanca Govea Cinco de Mayo chairperson \\C0DAD\Depai1ments\LegaR0ur Documents\Ordinances115\Cinco de Mayo sponsorship. docx Exhibit 4 AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $11,500 OF IN-KIND SERVICES AND RESOURCES FOR THE DENTON CINCO DE MAYO FESTIVAL TO BE HELD IN QUAKERTOWN PARK ON MAY 2, 2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Cinco de Mayo Festival is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in Quakertown Park on May 2, 2015; and WHEREAS, the City of Denton has sponsored up to $9,500 of in-kind services and supplies for the 2014 event which included police, park staff, equipment, supplies, and facilities; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $11,500 of in- kind services for the event to be held in Quakertown Park on May 2, 2015; NOW, THEREFORE, SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $11,500 of in- kind services and supplies, including but not limited to police, park staff, equipment, supplies and facilities, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of - 2015. CHRIS WATTS, MAYOR WODADDepartment"gaROur Documents\Ordinances\l 5\Cinco de Mayo Sponsorship.docx Exhibit 4 ATTEST: . JENNIFER WALTERS, CITY SECRETARY BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -101, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $18,000 of in -kind services and resources for the Denton Juneteenth Celebration to be held in Fred Moore Park on June 19 -20, 2015; and providing an effective date. BACKGROUND The Denton Juneteenth Celebration is organized by community volunteers. Last year, the City Council authorized spending up to $13,500 of in -kind services and resources to for the event. In addition, the Denton Juneteenth Celebration received $12,430 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, the Denton Juneteenth Celebration will receive $13,052 in HOT funds. The in -kind services and resources provided to the Denton Juneteenth Celebration include staff, equipment, supplies, and facilities. The City provided 113 hours of security and 198 hours of park maintenance support during the 2014 event and the use of the Martin Luther King Jr. Recreation Center and the Fred Moore Park at no charge. The actual cost to support the 2014 event was $17,687, which was $4,187 more than was authorized by the City Council (Exhibit 1). The increase is related to an increase in Police and Park Maintenance staff support during the event, and an improved tracking system in Parks and Recreation. To support this event at the current level, staff estimates the 2015 cost will be approximately $18,000. The cost estimate is based on clear weather; if inclement weather occurs, the staffing and supply cost will increase dramatically as staff will need to purchase and lay down mulch in the park during the event. The Denton Juneteenth Celebration expects to have 50 vendors and estimates 4,000 people will attend the event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind services and resources request up to $18,000. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On May 6, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $13,500 under Ordinance No. 2014 -131. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -101, Version: 1 FISCAL INFORMATION In 2015, the Denton Juneteenth Celebration will receive $13,052 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $18,000. The total cost of in -kind services, facilities, and HOT funds is $31,052 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $348,760 in City support to five of the eight previously sponsored events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 Costs 2. Running Total of Requested Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Juneteenth Celebration 2014 vs. 2013 Costs Exhibit 1 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 3,504 $ 4,236 $ 7,740 Park Fees $ 3,000 $ 3,000 City Facilities $ 984 $ 984 Equipment and Supplies $ 427 $ 427 Parks and Recreation $ 3,504 $ 4,236 $ 427 $ 3,984 $ 12,151 Police $ 5,536 $ 5,536 Total $ 3,504 $ 9,772 $ 427 $ 3,984 $ 17,687 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 1,024 $ 2,678 $ 3,702 Park Fees $ 3,000 $ 3,000 City Facilities $ 984 $ 984 Equipment and Supplies $ 162 $ 162 Parks and Recreation $ 1,024 $ 2,678 $ 162 $ 3,984 $ 7,848 Police $ 5,536 $ 5,536 Total $ 1,024 $ 8,214 $ 162 $ 3,984 $ 13,384 N >C W 3-r O Q., N N N O N W a3 U N C) '- F-' 4� bA i d' O N ct N ct U w a1 1:1� oo r o kn oo W') C, o0 00 U W t-- - 6g "* - en 69 bR 69 ul O H � O N � N w O 0 0 0 N � 00 M ti � 69 bR 69 bR ti u oo O O O C�, oo O N N � 0�0 �T 0�0 N � � 69 69 � 69 Nfl4 N ti w o� oo N O O O O bA bR a A- A-i UO H i/1 � ExECUTIVE COMMITTEE Cheylon Brown Chairperson Willie Hudspeth Vice - Chairperson Sharetta Lee Secretary Edward Patterson Treasurer SUB— COMMITTEES Entertainment /Gospel Darchel Levy Cheylon Brown Nagaris Johnson Parade Beatrice Clay Softball Denesha Factory Vendors Bobby Givens Clark Coleman Promotions/Photography Anthony Caraway Advertising Design Ali Torres Children's Games Belinda Tupper Volunteer Coordinator Edward Patterson H.O.T. Funds Coordinator City of Denton Liaison Janie McLeod I1FATOhl w� �a'tg��rac "M...- tiarnvv r�a'�n E''"I'r':iaDEA TDO (Sru a:3ao.:y1M in P.O. Box 51291, Denton, Texas 76206 • (940) 349 -8575 December 19, 2014 Dear Denton City Council: Exhibit 3 The City of Denton will be celebrating its 44th Annual Juneteenth Celebration this year and we invite you to celebrate with us! The Denton Juneteenth Celebration Committee (DJCC) serves as a non - profit volunteer group whose mission is to actively preserve and promote the broad spectrum of African American heritage through educational and cultural activities that benefits the Denton community. We are requesting that you will continue your support of the DJCC as you have in past years through sponsorship. The scheduled events for the 2014 -2015 fiscal year include an Essay Contest, the 5th Annual Leadership Conference, 3rd Annual Denton Hometown Heroes celebration, the Annual Friday night Gospel Extravaganza, a Parade, and the Annual Hip Hop Explosion The events have expanded from 2 staple events to various events throughout the year. The assistance we have received in the past through the Parks & Recreation Department has been vital to our continued success. The staff of the Martin Luther King Jr. Rec Center, the American Legion Hall, and the Parks workers at Fred Moore Park has helped to shape this celebration into one of the best Juneteenth celebrations in this region. We are excited to continue this partnership. Thanks in advance for your support the Juneteenth Celebration. If you have any questions, please contact our secretary, Sharetta Lee, at 940 -595 -4819 for more information. We appreciate you for helping us create "Unit,y in the °o it " Sincerely, Cheylon Brown Chair Denton Juneteenth Celebration Committee 11CODAD\Departments\Legal\OurDocuments\Ordinances115\Juncteenth Celebration Sponsorship.docx Exhibit 4 I lot • 2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Denton Juneteenth Celebration is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in Fred Moore Park on June 19-20, 2015; and WHEREAS, the City of Denton has sponsored up to $13,500 of in-kind services and supplies for the 2014 event which included police, park staff, equipment, supplies, and facilities; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $18,000 of in kind services for the event to be held in Fred Moore Park on June 19-20, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $18,000 of in- kind services and supplies, including but not limited to police, park staff, equipment, supplies and facilities, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. CHRIS WATTS, MAYOR \\CODAD\Departments\LegahOur Documents\Ordinances\15Uuneteenth Celebration Sponsorship.docx Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -102, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $15,500 of in -kind services and resources for the Denton Air Show to be held at the Denton Enterprise Airport on June 20, 2015; and providing an effective date. BACKGROUND The Denton Air Show is organized by community volunteers. Last year, the City Council authorized spending up to $13,500 of in -kind services and resources for the event. In addition, the Denton Air Show received $10,240 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, the Denton Air Show will receive $10,752 in HOT funds. The in -kind services and resources provided to the Denton Air Show include staff, equipment, supplies, and facilities. The City provided 69 hours of security and 383 hours of Airport and Park Maintenance support during the 2014 event; and the use of the Denton Enterprise Airport at no charge. The actual cost to support the 2014 event was $15,089, which was $1,589 more than was authorized by Council (Exhibit 1). The increase is due to more accurate tracking of time worked by Airport staff for the event. To support the event at the current level, staff estimates the 2015 cost will be approximately $15,500. The cost estimate is based on clear weather; if inclement weather occurs, the supply cost could increase dramatically during the event. The Denton Air Show expects to have 40 vendors and estimates 9,000 - 15,000 people will attend the event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind request and resources up to $15,500. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On May 6, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $13,500 under Ordinance No. 2014 -129. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -102, Version: 1 FISCAL INFORMATION In 2015, the Denton Air Show will receive $10,752 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $15,500. The total cost of in -kind services, facilities, and HOT funds is $26,252 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $375,012 in City support to six of the eight previously sponsored events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 Costs 2. Running Total of Requested Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Denton Air Show 2014 vs. 2013 Costs Exhibit 1 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 128 $ 20 $ 148 Airport Staff $ 6,098 $ 4,303 $ 1,200 $ 11,601 Police $ 3,340 $ 3,340 Total $ 6,098 $ 7,771 $ 1,220 $ 15,089 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 3,840 $ 3,840 Airport Staff $ 1,450 $ 1,200 $ 2,650 Police $ 6,898 $ 6,898 Total $ 3,840 $ 8,348 $ 1,200 $ - $ 13,388 N >C W 34�-r O Q., N N N O N a3 U N c O a bA i d' O N ct N ct U M — N O N N O H � O N � N w 69 b/-} 69 bF1 0 0 0 N N � 00 M rl ti `c O O O U 00 69 d oc N 69 69 bFJ kn In � � 69 bF1 EN 30, fsN., 0o N O O O a O � rii O H r5 C Denton Air Fair, Inc. P.O. Box 2800 Denton, TX 76202 November 24, 2014 Jan�e McLeod, Special Events Uty of Denton 601 E. Hckory Street Denton, TX 76205 Dear MS Mcl-eo& Exhibit 3 T'Ns is iii wfll serve as OUr request of in-kind and financiai services of Support. by City of Denton departments confinUe at the sarne level for the annua� a�rshow heid at the Denton Enterprise Airport. "Th irshow will be hem on Sat Uirday June 20, 2015 fts year. We greafly appreci ate the assstance and support that makes fuels a succeSSftfl speciai event for the iii ens of Denton. Thank you very rnuch. Rkfickner I I �M) 940-535-4606 \\C0DAD\Departments\Lega1\0ur Documents\Ordinances\15\Air Show Sponsorship.doa Exhibit 4 AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $15,500 OF IN-KIND SERVICES AND RESOURCES FOR THE 2015 DENTON AIR SHOW TO BE HELD AT THE DENTON ENTERPRISE AIRPORT ON JUNE 20,2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Denton Air Show Committee is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held at Denton Enterprise Airport on June 20, 2015; and WHEREAS, the City of Denton has sponsored up to $13,500 of in-kind services and supplies for the 2014 event which included police, staff, equipment, supplies, and facilities; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $15,500 of in- kind services for the event to be held at Denton Enterprise Airport on June 20, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $15,500 of in- kind services and supplies, including but not limited to police, staff, equipment, supplies and facilities, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. CHRIS WATTS, MAYOR \\CODAD\Departments\Legal\Our Documents\Ordinances\15\Ajr Show Sponsorship.docx Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY cn BY: ' AKS�� 7'00'oll l,' City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -117, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George C. Campbell Date: February 17, 2015 SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of the 35 Denton Music Festival. Live music will be played in the Williams Trade Square, located on the 200 block of E. Hickory St., Dan's Silverleaf patio, located at 103 Industrial St., and Harvest House patio, located at 331 E. Hickory St., on Saturday, March 14, and Sunday, March 15, from 12:00 noon to 12:00 midnight. An exception is specifically requested to increase sound levels from 70 to 75 decibels and for an extension for hours from 10 p.m. to midnight. Staff recommends approval. BACKGROUND The sixth annual 35 Denton (formerly known as NX35 and 35 Conferette) is a two -day music conference featuring approximately 200 acts from around the United States. In addition to the three outdoor stages, the event also takes place indoors at several participating venues in the Denton Downtown area. The outdoor concerts will be held on three stages: one located on the patio of Dan's Silverleaf, one located on the patio of Harvest House, and the main stage will be in Williams Trade Square parking lot; Williams Trade Square is a City owned property located in the 200 block of E. Hickory Street (east of the Wells Fargo Bank building). Outdoor performances on Saturday and Sunday begin at noon and are scheduled to conclude at 11 p.m. They are requesting an exception until midnight in the event that the headliner on each stage is asked for an encore. 35 Denton is requesting an increase in decibels from 70 to 75 decibels for amplified sound. 35 Denton will feature nationally known bands as well as local talent. Event organizers expect a total attendance of approximately 4,000 at any one time. PRIOR ACTION/REVIEW (Council, Boards, Commissions) In 2010, 2011, 2012, and 2013, City Council approved an exception to the noise ordinance for sound to be increased from 70 to 75 decibels and for amplified sound on Sunday for the 35 Denton event. EXHIBITS Exhibit 1 Sound Variance Request Exhibit 2 Secondary Sound Variance Request Respectfully submitted: City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -117, Version: 1 Aimee Bissett, Director Economic Development Department Prepared by: Christina Davis Economic Development Marketing Specialist City of Denton Page 2 of 2 Printed on 2/12/2015 Sound Variance for 2015 35 Denton Music Festival The organizers of the 35 Denton Music Festival would like ask the Denton City Council to approve a sound variance for the lot of Williams Trade Square for the purpose of an outdoor music festival on the following days March 14 & 15, 2015. 35 Denton would like to request a sound variance not to exceed 75 dba between the hours of Noon and Midnight on the days previously listed. 35 Denton Music Festival will conform to the guidelines laid out in the City of Denton Community Events Manual. Secondary Sound Variance for 2015 35 Denton Music Festival The organizers of the 35 Denton Music Festival would like ask the Denton City Council to approve a sound variance for the patio stages at Dan's Silverleaf 103 Industrial and Harvest House 331 E. Hickory for the purpose of a downtown music festival on the following days March 14 & 15 2015. 35 Denton would like to request a sound variance to extend the hours beyond 10pm to 12am, with amplified sound not to exceed 75 dba, on the patio stages on the days previously listed. 35 Denton Music Festival will conform to the guidelines laid out in the City of Denton Community Events Manual. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -119, Version: 1 Agenda Information Sheet DEPARTMENT: Fire CM /ACM: Jon Fortune DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the City Manager to execute an Interlocal Cooperation Agreement between the City of Denton and Denton County for Ambulance Services and declaring an effective date. BACKGROUND The interlocal agreement for ambulance service between the City of Denton and Denton County began in 1980 and provides for emergency medical service to Denton County within a designated area (see map in agreement). Each year a new agreement and ordinance is presented to the Denton City Council for the next fiscal year approving the fee the County will pay to the City of Denton for service using a County -wide funding formula based on population served, number of ambulance calls in the County area, and the rural square miles in the County. The population and mileage figures used are based on numbers obtained from the North Central Texas Council of Governments. This ongoing interlocal agreement is often delayed in the County's legal approval process, which also includes review by the Denton County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. After the City of Denton signs the agreement, the County Commissioners take their official action. Even though the contract is approved after its starting date, the agreement still remains effective from October 1, 2014 with no reductions in revenues. The total estimated fee of $113,577.00 (amount rounded to the nearest dollar) is the City of Denton's share for 2014 / 2015 based on the following estimated ratios: 1. A fixed readiness sum based on $ 0.5046 per capita for an estimated maximum amount of $59,857.35. 2. A fixed sum of $248.9627 per ambulance run estimated to be 164 runs for an estimated maximum amount of $40,829.88. This sum is based upon the number of runs made in the County areas for fiscal year 2014. 3. A fixed sum based on 18.74 rural miles in the agreed operating territory for an estimated maximum amount of $12,889.95. City of Denton Page 1 of 3 Printed on 2/12/2015 File #: ID 15 -119, Version: 1 Denton County Ambulance Funding - 2011 to 2015 2011 2012 2013 2014 2015 READINESSP County Funding 0.5511 0.5233 0.5085 0.5046 0.5046 Readiness Fund $61,694.04 $62,896.77 $60,318.16 $59,857.35 $59,857.35 EMS AMBUL Denton Runs to 178 201 175 188 164 County Funding $253.3125 $243.9887 $240.8809 $249.3075 $248.9627 Runs Funding t $45,089.63 $49,041.73 $42,154.16 $46,869.81 $40,829.88 RURAL SQUA Denton's Covere 19.65 19.65 20.32 19.75 18.74 Rural Sq. Miles Total $13,108.17 $13,228.07 $13,714.33 $12,805.64 $12,889.95 TOTAL COUN FUNDING $119,891.84 $125,166.57 $116,187.00 $119,533.00 $113,577.00 RECOMMENDATION The previous County Ambulance funding contract was approved by the City Council on January 7, 2014 by Ordinance 2014 -001. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff recommends the adoption of the proposed ordinance and agreement. FISCAL INFORMATION The estimated ambulance fee for the current fiscal year from the County is approximately 5% less than last year's due to a decrease in the number of calls. FYHIRTTC Exhibit 1 Ordinance City of Denton Page 2 of 3 Printed on 2/12/2015 File #: ID 15 -119, Version: 1 Exhibit 2 Agreement Exhibit 3 County EMS Funding Formula Respectfully submitted: Robin Paulsgrove Fire Chief Prepared by: Laura Behrens Fire Marshal City of Denton Page 3 of 3 Printed on 2/12/2015 sAlegal \our documents \ordinances \15 \ambulance agreement county.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton hereby approves an Interlocal Cooperation Agreement between the City of Denton and Denton County for ambulance services, a copy of which is attached hereto and incorporated by reference herein. The City Manager, or his designee, is hereby authorized to execute this Interlocal Cooperation Agreement on behalf of the City. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY S APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: THE COUNTY OF DENTON STATE OF TEXAS § CITY OF DENTON § AMBULANCE SERVICES INTERLOCAL COOPERATION AGREEMENT AMBULANCE SERVICE THIS AGREEMENT, which has an effective date of October 1, 2014, is made and entered into by and between Denton County a political subdivision of the State of Texas, hereinafter referred to as "the COUNTY," and the City of Denton, a municipal corporation, located in Denton County, Texas, hereinafter referred to as "the AGENCY ". WHEREAS, the COUNTY is a duly organized political subdivision of the State of Texas engaged in the administration of county government and related services for the benefit of the citizens of Denton County; and WHEREAS, the AGENCY is a municipal corporation, duly organized and operating under the laws of the State of Texas and engaged in the provision of ambulance services and related services for the benefit of the citizens of the City of Denton; and WHEREAS, the AGENCY is an owner and operator of certain ambulance vehicles and other equipment designed for the transportation of persons who are sick, infirmed or injured and has in its employ trained personnel whose duties are related to the treatment of said individuals and the use of such vehicles and equipment; and WHEREAS, the COUNTY desires to obtain emergency ambulance and related services for the benefit of residents of the COUNTY living in unincorporated areas of the COUNTY which the AGENCY is capable of providing; and WHEREAS, the provision of emergency ambulance and related services is a governmental function that serves the public health and welfare and is of mutual concern to both the COUNTY and the AGENCY; and WHEREAS, the COUNTY desires to expend County funds to defray the expense of establishing, operating and maintaining emergency ambulance services in the County; and WHEREAS, the COUNTY and the AGENCY mutually desire to be subject to and contract pursuant to the provisions of Texas Government Code, Chapter 791 and Texas Health and Safety Code, Section 774.003, and 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page I of 7 NOW THEREFORE, the COUNTY and the AGENCY, in consideration of the mutual promises, covenants, and Agreements stated herein, agree as follows: TERM The term of this Agreement shall be for the period beginning of October 1, 2014, and ending on September 30, 2015. II. DEFINITIONS As used herein, the words and phrases hereinafter set forth shall have the meanings as follows: A. "Emergency" shall mean any circumstance that calls for immediate action and in which the element of time in transporting the sick, wounded or injured for medical treatment is essential to the health or life of a person or persons. Whether an emergency, in fact, exists is solely up to the discretion of the AGENCY. For dispatch purposes only, "emergency" shall include, but not be limited to: 1. The representation by the individual requesting ambulance service that an immediate need exists for the transportation of a person from any location within the agreed operating area of the AGENCY to a place where emergency medical treatment may be obtained; or 2. The representation by the individual requesting ambulance service that an immediate need exists for the transportation of a person from any location within the agreed operating area of the AGENCY to the closest medical facility. B. "Rural area" means any area within the boundaries of the COUNTY, but outside the corporate limits of all incorporated cities, towns and villages within the COUNTY. C. "Urban area" means any area within the corporate lit-nits of an incorporated city, town or village within the COUNTY. D. "Emergency ambulance call" means a response to a request for ambulance service by the personnel of the AGENCY in a situation involving an emergency, as defined above, by an ambulance vehicle. A single response to a call may involve the transportation of more than one person at a time, but shall be considered as only one call. III. SERVICES The services to be rendered under this Agreement by the AGENCY are the ambulance services normally rendered by the AGENCY to citizens of City of Denton in circumstances of emergency, but which services will now be extended to all citizens of the COUNTY residing in 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 2 of 7 the unincorporated areas of the COUNTY within the operating territory or jurisdiction of the AGENCY, as agreed to by the AGENCY and the COUNTY in this Agreement and as set forth in "Exhibit A," attached hereto and incorporated herein by reference. It is recognized that the officers and employees of the AGENCY have the duty and responsibility of rendering ambulance services to citizens of the AGENCY and the COUNTY. In the performance of these duties and responsibilities, it shall be within the sole responsibility and discretion of the officers and employees of the AGENCY to determine priorities in the dispatching and use of such equipment and personnel and the judgment of the officer or employee shall be final. The COUNTY shall designate the County Judge to act on behalf of the COUNTY and to serve as "Liaison Officer" between the COUNTY and the AGENCY. The County Judge, or her designated substitute, shall devote sufficient time and attention to insure the performance of all duties and obligations of the COUNTY under this Agreement and shall provide for the immediate and direct supervision of employees, agents, contractors, sub - contractors and /or laborers of the COUNTY engaged in the performance of this Agreement. IV. PERFORMANCE OF SERVICES The AGENCY shall devote sufficient time and attention to insure the performance of all duties and obligations of the AGENCY under this Agreement and shall provide immediate and direct supervision of the AGENCY's employees, agents, contractors, sub - contractors and /or laborers engaged in the performance of this Agreement for the mutual benefit of the AGENCY and the COUNTY. V. COMPENSATION COUNTY agrees to pay to the AGENCY an estimated fee of $113,577.00 (amount rounded to the nearest dollar) based on a funding formula as follows: 1. A fixed sum based on a population percentage .5046 per capita; said sum computes to $59,857.35. 2. A fixed sum of $248.9627 per ambulance transport for an estimated maximum amount of $40,829.88. Said sum is based upon 164 transports made by the AGENCY in fiscal year 2014. 3. A fixed sum based on 18.74 rural miles in the agreed operating territory; said sum computes to $12,889.95. 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 3 of 7 The first and third sums are based upon population and mileage figures obtained from the North Central Texas Council of Governments. The second sum is based upon the definition of an "ambulance call" for purposes of this Agreement. Payment shall not be allowed for any instance in which a patient is not transported. Consistent with the reporting procedures described below, the AGENCY shall receive payment for transporting the patient regardless of the service delivery area in which the call originated. Requests for payment shall be submitted on the standardized ambulance transportation reporting form approved and provided by the COUNTY. It shall be the responsibility of the AGENCY to fully complete the forms and to provide complete and accurate patient information. Requests for payment shall be submitted within five (5) days of the performance of service by the AGENCY. Requests not timely submitted shall not be considered for payment. Requests for payment may be submitted by personal delivery, U.S. Mail, facsimile or computer telephone link to the office of the Denton County Fire Marshal. The date of submission shall be the date the fully documented request is received in said office. VI. FINANCIAL RECORDS The AGENCY agrees to make its financial records available for audit and /or review by the COUNTY, upon request by the COUNTY. VII. RESPONSIBILITY OF THE COUNTY The COUNTY, to the extent permitted by law, shall be responsible for the acts, omissions and negligence of all officers, employees and agents of the COUNTY who are engaged in the performance of this Agreement. VIII. RESPONSIBILITY OF THE AGENCY The AGENCY, to the extent permitted by law, shall be responsible for the acts, omissionsand negligence of all officers, employees and agents of the AGENCY who are engaged in the performance of this Agreement. IX. APPLICABLE LAW The COUNTY and the AGENCY understand and agree that liability under this contract is governed by Texas Government Code, Chapter 791 and Texas Health and Safety Code, Section 774.003. This Agreement is made in contemplation of the applicability of these laws to 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 4 of 7 the Agreement. Insofar as legally possible the COUNTY and the AGENCY agree to be bound by the above mentioned statutes as they exist as of the date of this Agreement. X. DEFAULT In the event of default of any of the covenants herein contained, this Agreement may be terminated at the discretion of the non- defaulting party if such default continues for a period of ten (10) days after notice to the other party in writing of such default and the intent to terminate this Agreement due to the default. Unless the default is cured, this Agreement shall terminate. XI. TERMINATION This Agreement may be terminated at any time by either the COUNTY or the AGENCY by giving sixty (60) days advance written notice to the other party. In the event of termination by either party, the AGENCY shall be compensated pro rata for all services performed to termination date together with reimbursable expenses then due as authorized by this Agreement. In the event of such termination, should the AGENCY be overcompensated on a pro rata basis for all services performed to the termination date and /or be overcompensated for reimbursable expenses, the COUNTY shall be reimbursed pro rata for all such overcompensation. Acceptance of such reimbursement shall not constitute a waiver of any claim that may otherwise arise out of this Agreement. MI. GOVERNMENTAL IMMUNITY The fact that the COUNTY and the AGENCY accept certain responsibilities relating to the rendering of ambulance services under this Agreement as a part of their responsibility for providing protection for the public health makes it imperative that the performance of these vital services be recognized as a governmental function and that the doctrine of governmental immunity shall be, and is hereby, invoked to the extent permitted under the law. Neither the AGENCY, nor the COUNTY waive, nor shall be deemed to have hereby waived any immunity or defense that would otherwise be available to it against claims arising from the exercise of governmental powers and functions. 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 5 of 7 XIII. ENTIRE AGREEMENT This Agreement represents the entire Agreement between the COUNTY and the AGENCY and supersedes all prior negotiations, representations and Agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. XIV. LAW OF CONTRACT This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. The venue for any dispute, or matter, arising under this Agreement shall lie in Denton County, Texas. XV. SEVERABILITY In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions of this Agreement shall remain valid and in full force and effect to the fullest extent possible. XVI. AUTHORITY The undersigned officer or agents of the parties are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties. XVII. SERVICE AREA Acceptance of this Agreement constitutes approval of the service area set out in attached Exhibit "A ". EXECUTED in triplicate originals on the dates set forth below. COUNTY: Denton County, Texas 110 West Hickory Street, 2na Floor Denton, Texas 76201 Mary Horn Denton County Judge AGENCY: City of Denton 332 E. Hickory St. Denton, Texas 76201 By_ Name Title 2014 -2015 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 6 of 7 Acting on behalf of and by the authority of Denton County Commissioners Court of Denton County, Texas. DATED: ATTEST: Denton County Clerk APPROVED AS TO CONTENT: BY: Denton County Fire Marshal Acting on behalf of and by the authority of the City of Denton DATED: ATTEST: BY: City Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: BY: B Y - Assistant District Attorney i t y Attorney AUDITOR'S CERTIFICATE I hereby certify that fiends are available in the amount of $ to accomplish and pay the obligation of Denton County under this Agreement. James Wells, Denton County Auditor 2014 -2015 lnterlocal Cooperation Agreement - Ambulance Services /Denton - Page 7 of 7 §[: \/1 R :\ C N C O T O d v P. 1 LL aC 12- 0 N O 0 U O N A Z [� M O o0 d' V1 O1 O E M d' O �D M o0 00 M V O1 M O a w O O O � 0. h 7 a, ca M oo a, u7 0 l � lv 1 m cv a, cv m o0 o yr o •a oo v cS cv m m � oo v m m vi cS vi cS oo --" ,-: vi vi U N O 0 U O N A Z [� M O o0 d' V1 O1 O E M d' O �D M o0 00 M V O1 M O a w O O O � 0. T C � a, Cp dpi � T •� u .0 Q lUUCawu x-° a aar�v Hh L- N E O C 'O G w h 7 a, ca M oo a, u7 0 l � lv 1 m cv a, cv m o0 o yr o w U w T C � a, Cp dpi � T •� u .0 Q lUUCawu x-° a aar�v Hh L- N E O C 'O G w City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -121, Version: 1 DEPARTMENT: CM/ ACM: Date: Fire Jon Fortune February 17, 2015 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the City Manager to execute an Interlocal Cooperation Agreement between the City of Denton and Denton County for Fire Protection Services; and declaring an effective date. BACKGROUND The interlocal agreement for fire service between the City of Denton and Denton County provides fire protection services by the Denton Fire Department to designated unincorporated areas within the County. This ongoing interlocal agreement is often delayed in the County's legal approval process, which also includes review by the Denton County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. After the City of Denton signs the agreement, the County Commissioners take their official action. Even though the contract is usually approved after its starting date, the agreement still remains effective from October 1, 2014 with no reductions in revenues. The Commissioners' Court determines the total appropriation to pay for fire protection in the unincorporated County area each year and divides that amount by an estimated number of fire calls to arrive at a per fire reimbursement. Denton County Fire Protection Funding - 2011 to 2015 2011 2012 2013 2014 2015 County Fundinj $10,000 $10,000 $10,000 $10,000 $10,000 Per Fire Call $450 $450 $475 $475 $500 Denton Fire Cal 28 30 54 37 37 Fire Call Fundi $12,600 $13,500 $25,650 $17,575 $18,500 Total Denton F Funding $22,600 $23,500 $35,650 $27,575 $28,500 RECOMMENDATION Staff recommends the adoption of the proposed ordinance and agreement. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -121, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) The previous County fire funding contract was approved by the City Council on January 7, 2014 by Ordinance 2014 -001. FISCAL INFORMATION Denton County will pay the City $ 10, 000 upon execution of the proposed agreement and reimburse the City for each fire call at the rate of $500. 00 per fire call. The annual estimate for the reimbursement to the City of Denton for fire calls in 2014 / 2015 is $ 18,500.00 based on an estimated 37 fire calls in the unincorporated County area. The total Fire Protection contract with the County is estimated to be $ 28,500.00 which is a slight increase from last year's $27,575.00 contracted amount. EXHIBITS Exhibit 1 Ordinance Exhibit 2 Agreement Exhibit 3 County Fire Funding Formula Respectfully submitted: Robin Paulsgrove Fire Chief Prepared by: Laura Behrens Fire Marshal City of Denton Page 2 of 2 Printed on 2/12/2015 sAlegal\our documents \ordinances \15 \fire protection agreement county.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR FIRE PROTECTION SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton hereby approves an Interlocal Cooperation Agreement between the City of Denton and Denton County for fire protection services, a copy of which is attached hereto and incorporated by reference herein. The City Manager, or his designee, is hereby authorized to execute this Interlocal Cooperation Agreement on behalf of the City. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ffim APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 4.. W BY: THE COUNTY OF DENTON § § CITY OF DENTON § FIRE DEPARTMENT STATE OF TEXAS § INTERLOCAL COOPERATION AGREEMENT FIRE PROTECTION SERVICES THIS AGREEMENT, which has an effective date of October 1, 2014, is made and entered into by and between Denton County, a political subdivision of the State of Texas, hereinafter referred to as "the COUNTY," and the City of Denton Fire Department, a municipal corporation, located in Denton County, Texas, hereinafter referred to as "the AGENCY ". WHEREAS, the COUNTY is a duly organized political subdivision of the State of Texas engaged in the administration of county government and related services for the benefit of the citizens of Denton County; and WHEREAS, the AGENCY is a municipal corporation, duly organized and operating under the laws of the State of Texas and engaged in the provision of fire protection services and related services for the benefit of the citizens of the City of Denton; and WHEREAS, the AGENCY is the owner and operator of certain fire protection vehicles and other equipment designed for the extinguishing of fire and prevention of damage to property and injury to persons from fire and has in its employ trained personnel whose duties are related to the use of such vehicles and equipment; and WHEREAS, the COUNTY and the AGENCY mutually desire to be subject to and contract pursuant to provisions of the Texas Government Code, Chapter 791 and the Texas Local Government Code, Chapter 352, and NOW, THEREFORE, the COUNTY and the AGENCY, for the mutual promises, covenants, Agreements and consideration stated herein, agree as follows: I. TERM The term of this Agreement shall be for the period beginning of October 1, 2014, and ending September 30, 2015. II. SERVICES The services to be rendered in accordance with this Agreement by the AGENCY are the fire protection services normally rendered by the AGENCY to citizens of the City of Denton in circumstances of emergency, but which services will now be extended to all citizens of the 2014 -2015 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 1 of 6 COUNTY residing in the unincorporated areas of the COUNTY within the operating territory or jurisdiction of the AGENCY, as agreed to by the AGENCY and the COUNTY in this Agreement and as set forth in "Exhibit A," attached hereto and incorporated herein by reference. These services are rendered in consideration of the basic funding and the separate per call fee set forth in this Agreement for the common good and benefit and to serve the public convenience and necessity of the citizens of the COUNTY who are not otherwise protected with respect to fire prevention, extinguishment, safety and rescue services. The services to be rendered are as follows: A. The AGENCY shall make available and provide emergency fire prevention, extinguishment, safety and rescue services within the agreed or specified territory or jurisdiction of the AGENCY. B. The AGENCY shall respond to requests for fire protection services made within the portion of the COUNTY designated as "Denton " as set out in Exhibit "A ". C. The COUNTY agrees that, in the event a fire in the AGENCY's unincorporated designated area which the AGENCY considers to be of an incendiary nature and upon request by the AGENCY, the County Fire Marshal will dispatch investigation personnel to the fire scene within a response time sufficient to legally maintain and protect all evidence of said fire and will conduct all appropriate investigation and assist in the prosecution of any case of arson. The AGENCY shall not be responsible for investigations of suspected incendiary fires in the unincorporated areas, but shall cooperate with the County Fire Marshal in immediately relating all pertinent information possible to the investigator(s). D. The COUNTY agrees that the County Fire Marshal may assist in the conduct of appropriate investigations of a fire which the AGENCY considers to be of incendiary nature in the AGENCY's incorporated area upon request of the AGENCY. E. The AGENCY shall submit monthly statements on the Texas Fire Incident Reporting System's standardized forms to the Denton County Fire Marshal, 9060 Teasley Lane, Denton, Texas 76210 -4010. This form will serve as the billing statement to the COUNTY for reimbursement of calls made in the unincorporated area. The Denton County Fire Marshal shall provide the forms upon request from the AGENCY. F. The AGENCY, in the performance of its duties and responsibilities under this Agreement, shall have the responsibility, within the sole discretion of the officers and employees of the AGENCY, except as otherwise determined by the Denton County Fire Marshal, to determine priorities in the dispatching and use of the AGENCY's equipment and personnel, and the judgment of any such officer or employee as to such matters shall be the final determination. 2014-2015 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 2 of 6 The COUNTY shall designate the County Judge to act on behalf of the COUNTY and to serve as "Liaison Officer" between the COUNTY and the AGENCY. The County Judge, or her designated substitute, shall devote sufficient time and attention to insure the performance of all duties and obligations of the COUNTY under this Agreement and shall provide immediate and direct supervision of employees, agents, contractors, sub - contractors and /or laborers of the COUNTY engaged in the performance of this Agreement for the mutual benefit of the COUNTY and the AGENCY. III. PERFORMANCE OF SERVICE The AGENCY shall devote sufficient time and attention to insure the performance of all duties and obligations of the AGENCY under this Agreement and shall provide immediate and direct supervision of the AGENCY's employees, agents, contractors, sub - contractors and /or laborers engaged in the performance of this Agreement for the mutual benefit of the AGENCY and the COUNTY. IV. COMPENSATION The COUNTY agrees to pay to the AGENCY for the full performance of services as provided in this Agreement the sum of $10,000.00, payable upon execution of this Agreement, and further agrees to pay the sum of $500.00 per fire call in the designated unincorporated areas of the COUNTY from October 1, 2014, to September 30, 2015. The COUNTY anticipates the AGENCY to run approximately 37 fire calls for a total funding of $18,500.00 for fire calls. The total payments by the COUNTY to the AGENCY pursuant to this Agreement are estimated to be $28,500.00. The COUNTY will make no payment to the AGENCY for service provided outside the agreed service district whether by Mutual Aid Agreement or otherwise. The AGENCY understands and agrees that payment by the COUNTY to the AGENCY shall be made in accordance with the normal and customary processes and business procedures of the COUNTY and in conformance with applicable state law. V. FINANCIAL RECORDS The AGENCY agrees to make its financial records available for audit and /or review by the COUNTY, upon request by the COUNTY. 2014 -2015 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 3 of 6 VI. RESPONSIBILITY OF THE COUNTY The COUNTY, to the extent permitted by law, shall be responsible for the acts, negligence and omissions of all officers, employees and agents of the COUNTY who are engaged in the performance of this Agreement. VII. RESPONSIBILITY OF THE AGENCY The AGENCY, to the extent permitted by law, shall be responsible for the acts, negligence and omissions of all officers, employees and agents of the AGENCY who are engaged in the performance of this Agreement. VIII. APPLICABLE LAW The COUNTY and the AGENCY understand and agree that liability under this contract is governed by the Texas Government Code, Chapter 791 and the Texas Local Government Code, Chapter 352. This Agreement is made in contemplation of the applicability of these laws to the Agreement. Insofar as legally possible the COUNTY and the AGENCY agree to be bound by the above mentioned statutes as they exist as of the date of this Agreement. IX. DEFAULT In the event of default of any of the covenants herein contained, this Agreement may be terminated at the discretion of the non - defaulting party if such default continues for a period of ten (10) days after notice to the other party in writing of such default and the intent to terminate this Agreement due to the default. Unless the default is cured, this Agreement shall terminate. X. TERMINATION This Agreement may be terminated any time, by either the COUNTY or the AGENCY by giving sixty (60) days advance written notice to the other party. In the event of termination by either party, the AGENCY shall be compensated pro rata for all services performed to the termination date together with reimbursable expenses then due as authorized by this Agreement. In the event of such termination, should the AGENCY be overcompensated on a pro rata basis for all services performed to the termination date and /or be overcompensated reimbursable expenses, the COUNTY shall be reimbursed pro rata for all such overcompensation. 2014 -2015 Interlocal Cooperation Agreement — Fire Protection Services, /Denton - Page 4 of 6 Acceptance of such reimbursement shall not constitute a waiver of any claim that may otherwise arise out of this Agreement. XI. GOVERNMENTAL IMMUNITY The fact that the COUNTY and the AGENCY accept certain responsibilities relating to the rendition of fire protection services under this Agreement as part of their responsibility for providing protection for the public health makes it imperative that the performance of these vital services be recognized as a governmental function and that the doctrine of governmental immunity shall be, and it is hereby, invoked to the extent permitted by law. Neither the AGENCY, nor the COUNTY waive, nor shall be deemed to have hereby waived, any immunity or defense that would otherwise be available to it against claims arising from the exercise of government powers and functions. XII. ENTIRE AGREEMENT This Agreement represents the entire Agreement between the COUNTY and the AGENCY and supersedes all prior negotiations representations and Agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. XIII. LAW OF CONTRACT This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. The venue for any dispute, or matter, arising under this Agreement shall lie in Denton County, Texas. XIV. SEVERABILITY In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the fullest extent possible. XV. AUTHORITY The undersigned officer or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties. 2014 -2015 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 5 of 6 XVI. SERVICE AREA Acceptance of this Agreement constitutes approval of the service area set out in attached Exhibit "A ". EXECUTED in triplicate originals on the dates set forth below. COUNTY AGENCY Denton County, Texas City of Denton 110 West Hickory Street, 2nd Floor 332 E. Hickory St. Denton, Texas 76201 Denton, Texas 76201 By Mary Horn Denton County Judge Acting on behalf of and by the authority of Denton County Commissioners Court of Denton County, Texas. DATED: ATTEST: BY: Denton County Clerk APPROVED AS TO CONTENT: FIRM Denton County Fire Marshal APPROVED AS TO FORM: BY: By Name Title Acting on behalf of and by the authority of the City of Denton DATED: ATTEST: BY: City Secretary APPROVED AS TO FORM: BY: __.� � Assistant District Attorneyt_City Attorney AUDITOR'S CERTIFICATE I hereby certify that funds are available in the amount of S accomplish and pay the obligation of Denton County under this Contract /Agreement. James Wells, Denton County Auditor to 2014 -2015 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 6 of 6 N N O O O ti U t� A w W w V H W A ti O W LO O N [ N M Lo d N co O N N Lo N O O Lo 0 It M w O� co N co 00 N U U U U 0 0 0 0 0 0 0 0 0 0 0 O l � 0 0 0 0 0 0 0 0 O O 0 0 0 0 0 0 0 0 0 0 0 O LO 0 6 6 6 6 6 6 6 6 O O 6 6 6 6 6 6 6 6 6 6 6 O N 0 6 0 6 0 6 0 6 O O 0 6 0 0 0 0 0 0 0 0 6 O 0 } 0 Lo O O Lo Lo Lo O Lo Lo Lo O O O O 0 0 �- O O O O O O� O�� O O O v) yr O cO O (n vi (n vi O vi Wn vi V l l O LO EAR Efl �� EA O V') N N l-- N Vf) l� t �u�uj kn 0 0 0 0 0 0 0 W 'O N 01 � d- t l d- N o0 O O � C, O U U N O G" 'C 1--" d- 1--" O 00 0o v'i d\ M l� N ail v-� O U- r. 00 ff3 01 O kn IT 00 O h ,--, N t-- kn 00 M N uj cf3 f3 to M M t!1 d M w w w w w 00 O W LO O N [ N M Lo d N co O N N Lo N O O Lo 0 It M w O� co N co 00 N kn 0 0 0 0 0 0 0 0 O O 0 0 0 0 0 0 0 0 0 0 0 O l � 0 0 0 0 0 0 0 0 O O 0 0 0 0 0 0 0 0 0 0 0 O LO 0 6 6 6 6 6 6 6 6 O O 6 6 6 6 6 6 6 6 6 6 6 O N 0 6 0 6 0 6 0 6 O O 0 6 0 0 0 0 0 0 0 0 6 O 0 } 0 Lo O O Lo Lo Lo O Lo Lo Lo Lo Lo O O Lo O Lo O O Ln Lo Ln 0 0 �- C) N O M�� (d 61)" O t- O N O O� O�� O O O O O v-) n v-) O v) O kn n r- , EA EA O cO O (n vi (n vi O vi Wn vi t O M M uj N O O V) V'� to N l l (n l LO EAR Efl �� EA O V') N N l-- N Vf) l� t �u�uj O 0 0 0 0 0 0 0 W 'O N 01 � d- t l d- N o0 O O � C, O >- Ln O O N O G" 'C 1--" d- 1--" O 00 0o v'i d\ M l� N ail v-� Cx] N O N a oo d to l h "D O h �-+ v� kn m N l � pC: p w � N _ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O > W O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O 0 O O O O v-) n v-) O v) O kn n kn cO O (n vi (n vi O vi Wn vi O d O V) V'� to N l l (n l Vf) t— l t-- O V') N N l-- N Vf) l� t N O 0 0 0 0 0 0 0 0 0 'O N 01 � d- t l d- N o0 O O " N � M dt �--+ �n d- d- C, O >- Ln O O N O G" 'C 1--" d- 1--" O 00 0o v'i d\ M l� N ail v-� O U- r. 00 ff3 01 O kn IT 00 O h ,--, N t-- kn 00 M N uj cf3 f3 to M M t!1 d M 00 M 00 00 O O 00 LL �s3 kr) M fA (f3 fA (f3 l-- 01 ff3 1p l-- M O 60f3 (A M ff3 U�j ff3 N (f3 Ef3 ff3 cf3 ff3 C -- d\ (f3 � l� l� N N �--� �--� 00 �--� N N d' d' �D d' �--� d' �D �--� 00 �+- d' �O d' O d' 'T �--� CIA N �D a1 O a1 �-+ 00 -+ o : c N N N N M N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 OO nv;oo nv;o00 n o n co00o�noov n v o M 00 00 01 (01� d' d' DD On N � 00 dt "o dt "o 00 d' I- V') O LO a a m oo O N O a v O O FH (f3 Ef3 ff3 Ef3 (f3 Ef3 (f3 Ef3 ff3 N O N a oo d to a d O v 00 v v O d- M kn m N p w _ a� O O •� U > W O O> 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N p0 0 0 0 0 0 0 0 0 0 0 0 CO 0 0 0 0 0 CO O O O M ¢�dUQQww�tix� Ln O O kn O Vn to O O kn O kn v-� O O Wn v-� Vn H O O A0 00 h "O kn IT 00 O h ,--, N t-- kn 00 M N i' Lo to M M t!1 d M 00 M 00 00 d' N M � N 116 O 00 LL 't kr) M fA (f3 fA (f3 l-- 01 ff3 1p l-- M O 60f3 (A M ff3 U�j ff3 N (f3 Ef3 ff3 ff3 Ef3 (f3 Ef3 -- -- d\ (f3 (f3 Ef3 (f3 to w _ a� O O •� U > W O O> aj P O t� 0 ¢�dUQQww�tix� a a a0a,a,a,t�v�HE� H d City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -125, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $17,500 of in -kind services for the Denton Blues Festival to be held at the Quakertown Park on September 19 -20, 2015; and providing an effective date. BACKGROUND The Denton Blues Festival is organized by the Denton Black Chamber of Commerce and community volunteers. Last year, the City Council authorized spending up to $15,000 of in -kind services and resources for the event. In addition, the Denton Blues Festival received $16,580 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, the Denton Black Chamber of Commerce will receive $17,409 in HOT funds. The in -kind services and resources provided to the Denton Blues Festival include staff, equipment, supplies, and facilities. The City provided 85 hours of security and 146 hours of park maintenance support during the 2014 event, and the use of Quakertown Park at no charge. The actual cost to support the 2014 event was $17,311, which was $2,311 more than was authorized by the City Council (Exhibit 1). The increase is related to an improved tracking system in Parks and Recreation and added costs related to the festival extending their event hours on Saturday. To support this event at the current level, staff estimates the 2015 cost will be approximately $17,500. The cost estimate is based on clear weather; if inclement weather occurs, the staffing and supply cost will increase dramatically as staff will need to purchase and lay down mulch in the park during the event. The Denton Blues Festival expects to have 40 vendors and estimates 6,000 people will attend the two -day event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind services and resources request up to $17,500. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On August 5, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $15,000 under Ordinance No. 2014 -220. City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -125, Version: 1 FISCAL INFORMATION In 2015, the Black Chamber of Commerce will receive $17,409 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $17,500. The total cost of in -kind services, facilities, and HOT funds is $34,909 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $409,921 in City support to seven of the eight previously sponsored events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 Costs 2. Running Total of Requested Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Denton Blues Festival 2014 vs 2013 Costs Exhibit 1 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 2,048 $ 3,936 $ 5,984 Park Fees $ 4,125 $ 4,125 City Facilities $ 2,720 $ 2,720 Equipment and Supplies $ 250 $ 250 Parks and Recreation $ 2,048 $ 3,936 $ 250 $ 6,845 $ 13,079 Police $ 4,232 $ 4,232 Total $ 2,048 $ 8,168 $ 250 $ 6,845 $ 17,311 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 2,048 $ 5,752 $ 7,800 Park Fees $ - $ 3,000 $ 3,000 City Facilities $ - $ 2,720 $ 2,720 Equipment and Supplies $ - $ 306 $ 306 Parks and Recreation $ 2,048 $ 5,752 $ 306 $ 5,720 $ 13,826 Police $ 3,823 Total $ 2,048 $ 9,575 $ 306 $ 5,720 $ 17,649 N >C W 34�-r O Q., N N N O N a3 U N c O a bA i d' O N ct N ct U O Ln 001 ON1 O 00 Ap — Lr N l� 01 O H � O � 69 � bI-J 69 bI-J 69 b/-} 69 bF1 fn 0 0 0 Ln N N Lr 00 M r ti `c O O O sM� � soc� U 1:1 c21 00 't 69 d oc N 69 69 bFJ � In � � 69 bF1 EN 30, fsN., 0o N O O O a O � rii O H «3 C 03 _ -� C W Q Sir a. H �n Kerry Goree Chairman Reggie Hill President Ron Johnson Secretary John Baines Treasurer Mark Courts Board Member Robert Hicks Board Member A member of the Texas Association of African American Chambers of Commerce www.taaacc.org A member of the U. S. Black Chamber of Commerce www.usblackchamber. OM Exhibit 3 DENTON BLACK CHAMBER OF COMMERCE December 8, 2014 Ms. Janie McLeod Community Events Coordinator City of Denton 601 E. Hickory, Suite B Denton, Texas 76205 RE: Denton Blues Festival — Saturday /Sunday September 19 -20, 2015 Dear Janie, We would like to once again thank the City of Denton for their extremely high quality of support of our annual Denton Blues Festival and formally request the City's support for our 2015 offering. We would once again like to hold our event on City property adjacent to City Hall and the Central Branch of the Library. Please let us know what else is needed to secure the City Sponsorship once again for our event. On Behalf of the Denton Black Chamber and the Denton Blues Festival Committee, John Baines, Event Coordinator P.O. Box 51026 — Denton, Texas 76206 Phone (940) 382 -9100 Fax (940) 382 -9695 Email: info@dentonblackchamber.org UodadWepartmentsVegaRour docutnents\ordinances\ I 5\blues festival sponsorship.docx Exhibit 4 AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $17,500 OF IN-KIND SERVICES FOR THE 17TH ANNUAL BLUES FESTIVAL TO BE HELD IN QUAKERTOWN PARK ON SEPTEMBER 19-20,2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Blues Festival, is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in Quakertown Park on September 19-20, 2015; and WHEREAS, the City of Denton has sponsored up to $15,000 of in-kind services for the 2013 and 2014 events which included police, rental of the park, park staff and the use of park equipment; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $17,500 of in- kind services for the event to be held in Quakertown Park on September 19-20, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY- ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $17,500 of in- kind services, including but not limited to police, rental of the park, park staff and the use of park equipment and the said participation is hereby approved. SECTION 2, This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 3 2015. CHRIS WATTS, MAYOR Uodad\departrnentsVega1\our documents\ordinances\l 5\blues festival sponsorship.doex Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -126, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $4,900 of in -kind services and resources for Komen North Texas Denton Race for the Cure to be held at C.H. Collins Athletic Complex on Long Road on Saturday, September 26, 2015; and providing an effective date. BACKGROUND The 2015 Komen North Texas Denton Race for the Cure (Komen for the Cure) is organized by the Susan G. Komen of North Texas and community volunteers. Last year, the City Council authorized spending up to $4,700 of in -kind services and resources for Komen for the Cure. In addition, Komen for the Cure received $10,000 in Hotel/Motel Occupancy Tax (HOT) funds. In 2015, Komen for the Cure will receive $10,000 in HOT funds. The in -kind services and resources provided to Komen for the Cure include staff, equipment, supplies, and facilities. The City provided 37 hours of security during the event, rental of tables, chairs, and barricades for the street closure. The actual cost to support the 2014 Komen for the Cure was $4,876, which was $176 more than was authorized by the City Council (Exhibit 1). Komen for the Cure organizers elected to move the event from South Lakes Park to the C.H. Collins Athletic Complex for easier access to parking and fewer street closures. The relocation of the event eliminated the need for Park Maintenance support, reduced the number of hours needed for security, and eliminated the need for rental of the park. To support Komen for the Cure at the current level, staff estimates the 2015 cost will be approximately $4,900. Komen for the Cure expects to have 50 vendors and estimates 2,500 people will attend the Komen for the Cure event. The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require the City Council's approval. RECOMMENDATION Staff recommends supporting the in -kind services and resources request up to $4,900. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On August 19, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -126, Version: 1 exceed $4,900 under Ordinance No. 2014 -255. FISCAL INFORMATION In 2015, Komen for the Cure will receive $10,000 in HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $4,900. The total cost of in -kind services, facilities, and HOT funds is $14,900 for which the City is recognized as a sponsor at the appropriate level. Including this event, in Fiscal Year 2014 -15, the City Council will have authorized a total of $424,821 in City support of the eight previously sponsored events (Exhibit 2). EXHIBITS 1. 2014 versus 2013 Costs 2. Running Total of Requested Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/12/2015 Susan G. Komen Exhibit 1 2014 versus 2013 Costs 2014 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ - Park Fees $ - City Facilities $ - Equipment and Supplies $ 3,100 $ 3,100 Parks and Recreation $ - $ - $ 3,100 $ - $ 3,100 Police $ 1,776 $ 1,776 Total $ - $ 1,776 $ 3,100 $ - $ 4,876 2013 City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees Total In- Kind Costs PARD Staff $ 1,616 $ 1,616 Park Fees $ - $ 1,800 $ 1,800 Equipment and Supplies $ - $ 1,907 $ 1,907 Parks and Recreation $ 1,616 $ - $ 1,907 $ 1,800 $ 5,323 Police $ 4,581 $ 4,581 Total $ 1,616 $ 4,581 $ 1,907 $ 1,800 $ 9,904 N >C W 34�-r O Q., N N N O N a3 U N c O a bA i d' O N ct N ct U M 01 d1 00 O 00 O - GD - Lr d O H N O 600 001 001 69 69 b�I3 69 bF1 M_ 69 bIJ 69 en N 69 b/-} 69 bF1 fn 0 0 0 Ln N N Lr 00 M ti c � sr-�- sM� � soc� U 03 a°1 a�1 o 1:1 c21 60 't 69 d 6�0 N N 69 69 bFJ In � � 69 bF1 EN 30, fsN., 0o N O O O a O � rii O H «3 C 03 _ -� C W Q Sir a. H �n Exhibit 3 S USQ n G. KOMen � NORTH TEXAS December 1, 2014 Komen North Texas P.O. Box 261730 Plano, Texas 75026 -1730 972 - 378 -4808, Helpline 1 -877 GO KOMEN komennorthtexas.org Janie McLeod Community Events Coordinator City of Denton 601 E. Hickory, Suite B Denton, TX 76205 Dear Janie, On behalf of the Susan G. Komen North Texas, I respectfully submit this request to you regarding sponsorship support from the City of Denton for the upcoming Denton Race for the Cure, September 26, 2015. This will be our 5th annual Race for the Cure event in Denton. Held at C.H. Collins Athletic Complex in Denton, this event will draw approximately 3,000 Race participants, breast cancer Survivors and supporters. Based on this number of participants we are requesting support from the City of Denton for the following items: • Support from the police department — estimated 1 overnight officer and 4 officers on Race day; • Fire and EMS personnel — estimated 1 ambulance with 2 medics; • Street barricades, cones and messages boards to cover 5k and 1M course; • Dumpster and recycling rental and service; • With the remaining funds available to cover tables /chairs /linens expense. We are grateful to the City of Denton for their continued support. Upon approval from the City of Denton to cover the above request, Komen North Texas will recognize the City of Denton according to the fair market value of the sponsorship contribution. Please see attached for a list of sponsorship levels and recognition benefits. Please let me know if you would like additional information to support this request. We look forward to partnering with your office and the City of Denton to make this another successful Denton Race for the Cure. With best regards, Shannon Sears Business Development Manager ssears @komennorthtexas.org 972 - 865 -6968 Komen North Texas susanG P.O. Box 261730 Plano, Texas 75026-1730 KOMe 972-378-4808, Helpline 1-877 GO KOMEN NORTH TEXAS komennorthtexas.org Speaking opportunity for Company Official at Name Name Name Race day ceremonies Name 1 1 Company logo on Komen North Texas 6 4 2 homepage scroll (for, month leading up to Pace); quo it arz komennorthtexas,org Use of Komen Pace for the CUrek logo with prior VIP Affiliate approval of artwork or Q 41 Tent in Sponsor Circle on Pace day 10 x 20 10 x 20 lox 10 Stage area signage on Race day Logo Logo Logo Recognition on Race T-shirts Logo Logo Logo Recognition on Race agendas Logo Logo Logo Identification on Komen North Texas Pace for the Cure website Logo Logo Logo Mention on Komen North Texas social media sites Logo/Video— Logo/Video" Logo/Video" with inclusion of company website hyperlink Sponsor- provided corporate banners on Race course' 6 6 4 Complimentary Race entries 20 15 10 PA announcements throughout Race Komen-created Race banner ad for use on sponsor's website Recognition award fir aN Breast health education workshop for employees roe �m 10 x 10 Logo Logo Logo Logo lox 10 Logo Logo Logo Logo Exhibit 3 10 X 10 Name Name Name Name Name Name Name Name Logo Logo Name Name 2 2 1 1 8 6 4 2 u� quo it arz ar or Q 41 \\C0DAD\Departments\Lega1\0ur Document$\Ordinances\15\komensponsorshipis.doc Exhibit 4 AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $4,900 OF IN-KIND SERVICES AND RESOURCES FOR KOMEN NORTH TEXAS DENTON RACE FOR THE CURE, TO BE HELD AT C.H. COLLINS ATHLETIC COMPLEX ON LONG ROAD ON SATURDAY, SEPTEMBER 26, 2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Susan G. Kamen North Texas Race for the Cure is requesting the City of Denton to participate as a sponsor for the event to be held at C.H. Collins Athletic Complex on Long Road on September 26, 2015; and WHEREAS, the City of Denton has sponsored up to $4,700 of in-kind services for the 2013 and 2014 events which included police, rental of tables and chairs, and the provision of barricades for street closures, and WHEREAS, in exchange for the said support, the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and of benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $4,900 of in- kind services for the event to be held at C.H. Collins Athletic Complex on Long Road on September 26, 2015; NOW, THEREFORE, SECTION 1. The City Council finds that it is in the public interest and of benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $4,900 of in- kind services, including but not limited to police support and the provision of barricades and resources and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the , day of 2015. CHRIS WATTS, MAYOR Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY IM 10!tw City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -130, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement for Engineering Services associated with the City of Denton 2015 and 2016 Fiscal Year Wastewater Collection System Rehabilitation projects; providing for the expenditure of funds therefor; and providing an effective date (File 5756- awarded to Teague Nall and Perkins, Inc. in an amount not -to- exceed $286,730). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION The Fiscal Year 2015 Wastewater Collection System Rehabilitation project consists of the replacement and rehabilitation of approximately 8,510 linear feet of 8 -inch sewer lines in various public right of ways (ROW) across the city. The Fiscal Year 2016 Wastewater Collection System Rehabilitation project consists of the replacement and rehabilitation of approximately 11,060 linear feet of 8 -inch sewer lines in various public right of ways (ROW) across the city. Exhibit 1 shows the project locations for both fiscal years. The proposed engineering fee of $286,730.00 for the professional services on this project includes amounts for detailed design, survey, bid phase assistance and limited construction services support. Fee components calculated in support of this fee included $193,230 for basic services and $93,500 for special services (survey). The preliminary opinion of probable construction cost for both projects is approximately $3.42 million dollars. Basic services represent approximately 5.64% of the projected construction cost. The total contract amount represents approximately 8.37% of the projected construction cost. These fee percentages compare favorably to similar wastewater projects approved by the Public Utilities Board and City Council in 2013. Therefore, the amount of the professional services agreement is consistent with the level of effort required for a project of this nature. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. RECOMMENDATION City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -130, Version: 1 Staff recommends approval of the Professional Services Agreement between the City of Denton and Teague Nall and Perkins, Inc. in the not -to- exceed amount of $286,730. PRINCIPAL PLACE OF BUSINESS Teague Nall and Perkins, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT This contract will become effective upon Council approval with design services to be performed through September 3, 2017. FISCAL INFORMATION Funding for rehabilitation projects will be provided from Wastewater Utilities Capital Improvement Project revenue funds that will be set up for each project segment. The Fiscal Year 2015 project has eight (8) project funding numbers with a total project fee of $129,880. The Fiscal Year 2016 project has nine (9) project funding numbers with a total project fee of $154,350. These fees along with a Direct Reimbursable Fee of $2,500, comprise the total services fee of $286,730. EXHIBITS Exhibit l: Map Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Professional Services Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Frank Payne at 349 -8946. City of Denton Page 2 of 2 Printed on 2/12/2015 FILE 5756 Exhibit 1 T i ' A K EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD January 26, 2015 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 26, 2015 at 9:01 a.m. in the Service Center Training Room, City of Denton Service Center, 901Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan, and Barbara Russell Absent: Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 3. Consider approval of a Professional Services Agreement for Architect or Engineer between the City of Denton and Teague Nall and Perkins in the amount of $286,730.00 for Engineering Services associated with the Fiscal Year 2015 and 2106 Wastewater Collection System Rehabilitation projects. Motion was made to approve item 3 by Board Member Robinson with the second by Board Member Cheek. The vote was 5 -0 approved. Adjournment 10:32 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES ASSOCIATED WITH THE CITY OF DENTON 2015 AND 2016 FISCAL YEAR WASTEWATER COLLECTION SYSTEM REHABILITATION PROJECTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5756— AWARDED TO TEAGUE NALL AND PERKINS, INC. IN AN AMOUNT NOT -TO- EXCEED $286,730). WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with Teague Nall and Perkins, Inc. to provide professional engineering services for the Wastewater Collection System Rehabilitation Projects , a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5756 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR EXHIBIT 3 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of 2015, 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 Teague Nall and Perkins, with its corporate office at 1517 Centre Place Drive, Suite 320, Denton, Texas 76205 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 and Surveying Services for 2015 and 2016 Wastewater Collection System Improvement Project (includes Attachments A and B) Page 1 SAproposals \Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the Fixed Fee compensation shall be $ 190,730. 2.1.2 Progress payments for Basic Services shall be paid based upon the Design Professionals estimate of the percentage of the work effort that has been completed. 2.2 SPECIAL SERVICES 2.2.1 Compensation for Special Services shall be $93,500.. 2.2.2 Progress payments for Special Services shall be paid based upon the Design Professionals estimate of the percentage of the work effort that has been completed. 2.3 ADDITIONAL SERVICES 2.3.1 Compensation for Additional Services shall be based on negotiated fees for each item of service provided, as mutually agreed to by the ENGINEER and CITY. 2.3.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be based on a multiple of 1.10 times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.00 times the expenses incurred by the Design Professional, the Design Professional's em- ployees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of 2,500 without the prior written approval of the Owner. 2.4 TOTAL CONTRACT AMOUNT $ 286,730 Page 2 SAproposals \Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 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. Attachments A through B . This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON :• ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA E3I1PR I a" S„ CITY Al "J"O NEY BY: - �.._ GEORGE C. CAMPBELL CITY MANAGER Teague Nall and Perkins, Inc. BY .-. _ .....� C:iulr 1.,. Vickery, P. Principal WITNESS: Page 3 S: \proposals \Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 CITY OF DENTON GENERAL CONDITIONS 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) performed by the Architect or Engineer (hereinafter called the "Design Professional ") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services ") 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care "). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project, Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the 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 the 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 of those 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 (See attachments for detailed scope information) 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project, 2.2.4 Based on the mutually 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 Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the 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 construction. 2.3 DESIGN DEVELOPMENT PHASE (N /A) 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, sche- dule or construction budget, the 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 the Project as to architectural, 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 Owner's approval of the documents, Design Professional warrants that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 22.5. 2.4 CONSTRUCTION DOCUMENTS PHASE (See attachments for detailed scope information) 2.4.1 Based on the approved Design Development Documents and any further 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 the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. Page 4 S: \proposals \Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 2.4.3 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 in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project, 2.5 CONSTRUCTION CONTRACT PROCUREMENT (See attachments for detailed scope information) 2.5.1 The Design Professional, following the Owners approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the 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 - ADMINISTRATION OF THE CONSTRUCTION CONTRACT (See attachments for detailed scope information) 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 the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2, 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration shall also be in accordance with AIA document A201, General Conditions of the Con- tract for Construction, current as of the date of the Agreement, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council of Govemments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities 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 and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Con- struction. The Design Professional shall have authority to act on behalf of the 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 inspect the construction site at least two times a week, regardless of whether construction is in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the 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 promptly reporting to the Owner any defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itselfshall 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 shall not be responsible for construction 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 omissions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions ofthe work. 2.6.7 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 Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. Page 5 SAproposals \Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 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 333, 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 the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements ofthe Contract Documents. Page 6 S:\proposals\Denton SS Rehab 2015 and 2016\TNP 2015-2016 SS Rehab Agreement.doe EXHIBIT 4 ARTICLE 3 ADDITIONAL SERVICES unro�I 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified mthe 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 32 and 3.4 shall only be provided if authorized or confirmed in writing by the 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 neg] igence or fault of Design Professional. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary ur adjustments m the Owner's program or Project budget required by the enactment mrevision of codes, laws ^, regulations subsequent m the preparation ofsuch documents, or 3. due to changes required as a result ofthe Owner's failure to render decision in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services m connec- tion nith Change Orders and Construction Change Directives. 3.3.4 Providing xmioconcerning replacement ,f work damaged hv fire or other cause during construction, and furnishing services required in connection with the 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, muv failure mr performance vreither the Owner m Contractor under the Contract for Construction. 3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor m others iu connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional io party thereto. aay Providing services iv addition mthose required ovArticle 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 3.3.9 Notwithstanding anything contained in the Agreement Proposal or these General Conditions to the contrary, all services described m this Article » that are caused o, necessitated m whole ^rm part due the negligent act or omission v« the Design Professional shall be performed uv the Design Professional as n part m the Basic Services under the Agreement with uo uuumvu| wmpeomuimu above and beyond the compensation due the Design pofeaoumm for the Basic Services. The intervening "rconcurrent negligence mr the Owner shall not limit the Design Professional's obligations mmermioomsectio Page SAproposalsWenton. SS Rehab 2015 and 2016\TNP 2015-2016 SS Rehab Agreement.doc EXHIBIT 4 Page 8 S:\proposals\Denton SS Rehab 2015 and 2016 \TNP 2015 -2016 SS Rehab Agreement.doc EXHIBIT 4 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the 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 market rates of labor and materials fumished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 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 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owners Project budget preliminary estimates of Construction Cost and detailed estimates of Construc- tion Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment over the Contractors methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction 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 the furnishing, 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 include contingencies for design, bidding and price escalation, to determine what materials, equipment component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. Page 9 S:\proposals\Denton SS Rehab 2015 and 2016\TNP 2015-2016 SS Rehab Agreement.doc EXHIBIT 4 I I 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project MUM, 1 1111 11 Mriff,V11141NII-IFIK1,11101 � I�MM Page 10 SAproposalsWenton SS Rehab 2015 and 2016\TNP 2015-2016 SS Rehab Agreement.doe EXHIBIT 4 8.2.1.6 Other expenses that are approved in advance in writing by the Owner 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 8.3.2 If and to the extent that the time initially established in 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 manner set forth in Section 2 of the Agreement. 8.3.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. X's ARTICLE 9 INDEMNITY ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 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 than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits ofnot less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate Page I I SADroDosakW,%-P f * 1 TUP-91! 1 ct �6 EXHIBIT 4 Design Professional shall, prior to the effective date of the change or cancellation, famish Owner with substitute certificates of insurance meeting the requirements of this Article 10. 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 and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal represen- tatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner, 11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in 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 the 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 can not be reasonably harmonized, such documents shall be given priority in the following order: The executed Agreement 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of 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 the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Owner'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 confidential 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 and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified 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. Page 12 SAproposals\Denton SS Rehab 2015 and 2016UNP 2015-2016 SS Rehab Agreement.doe EXHIBIT 4 ATTACHMENT'A' ITEMIZED SCOPE OF SERVICES 2015 and 2016 Wastewater Collection System Improvements Project CITY OF DENTON BASIC SERVICES PROJECT DESCRIPTION The scope set forth herein defines the work to be performed by the ENGINEER in completing the project. Both the CITY and ENGINEER have attempted to clearly define the work to be performed and address the needs of the Project. WORK TO BE PERFORMED The project involves the replacement of existing sanitary sewer lines in public right -of -way at the following locations: 2015 Wastewater Collection System Rehabilitation Project Sycamore: From MH 425' west of Bernard to the alley east of Bernard and down alley, approximately 1,130' Briercliff: From Brighton to Regal, approximately 1,020' Bernard: From Prairie to Eagle, approximately 1,290' Oillcrest: From Panhandle to Scripture, approximately 1,000' Malone: From 170' south of Broadway to Jagoe, approximately 1,050' Scripture: From 180' west of Ector to Jagoe, approximately 1,300' Sena: From Ector to Bradley & from Gober to 100' west of Malone, approximately 650' Panhandle: From Aileen to Malone, approximately 1,070' Total Length approximately 8,510'. 2016 Wastewater Collection System Rehabilitation Project Uland: From Railroad Ave to 90' east of Rose, approximately 1,200' Paisley: From 150' east of Frame to Ruddell, approximately 2,000' Wood: From Mulberry to Sycamore, approximately 300' Kendolph: From 600' south of Underwood to 500' north of Willowwood, approximately 930' Ave B: From Margie to Underwood, approximately 420' West Hickory: From Bonnie Brae to 85' east of Ave H, approximately 560' West Hickory: From Ave D to Ave C, approximately 610' West Hickory: At West Hickory and Welch, approximately 70' West Hickory: From Bernard to Denton, approximately 670' Thomas: From Linden to Panhandle, approximately 730' Rose: From 60' south of Paisley to 150' north of Lehrman, approximately 420' N Texas Blvd: From Chestnut to Hickory & from Ave D to Ave F, down Ave F to Stella, approximately 3,150' Total Length approximately 11,060'. Unless indicated otherwise, segments of replacement will terminate at manholes, either existing or proposed. Attachment A - Page 1 of 8 EXHIBIT 4 Assumptions and Clarifications The following assumptions were used by the ENGINEER for the preparation of this scope of Basic Services: 1. The 2015 rehab project scope of work will consist of three phases: design, bidding and construction. Alternatively, the 2016 rehab project will only be composed of the design phase, with the construction phase to be performed by in -house forces. 2. The approximate lengths indicated above are based on exhibits provided by the City. 3. The City will provide TV inspection data and other information regarding the condition of the sanitary sewer lines for use by the ENGINEER in making recommendations. 4.. Field surveys are included as a part of the scope of this agreement. Because the relocation proposed near Fouts Street will require services to be run from the street to the rear of the house, additional survey will be necessary to ensure a suitable route for the services exists. 5. A detailed Subsurface Utility Engineering investigation is not a part of the scope of this agreement. The ENGINEER will attempt to have DIGTESS locate existing utilities prior to the field surveys. 6. It is assumed that all of the rehabilitation work in the 2015 project will be bid as one project. 7. Plan and profile sheets will be prepared for all of the replacements listed above, assuming open cut replacement. Plan and profile sheets will be prepared as 24 "x 36" sheets, using a 1" = 40' scale. Existing property owners will not be shown on the plans, but street addresses will be shown. & The CITY will make GIS shape files available that show buildings and other pertinent data. 9. No traffic control plans will be prepared as part of the scope of this agreement, other than to provide performance requirements that the contractor must comply with in his preparation of a traffic control plan. 10. A geotechnical investigation is not a part of the scope of this agreement. 11. Materials testing during construction is not included in the scope of work. 12. ENGINEER assumes that no geotechnical work will be associated with this scope of services. Efforts related to providing or coordinating any geotechnical work shall be considered an additional service. The ENGINEER shall coordinate with the CITY to determine the pavement section to be used for the pavement replacement work. Attachment A - Page 2 of 8 EXHIBIT 4 13. ENGINEER assumes that no system modeling will be associated with this scope of services. 14. Public meetings are not anticipated, and are not a part of the scope of this agreement. Scope of Basic Services The scope of this work is described as follows: A. Design Meetings The ENGINEER will conduct a project kickoff meeting with City staff to clarify responsibilities, to specify phasing and other issues not yet finalized, and to review the project schedule, which the ENGINEER will provide at the meeting. 2. The ENGINEER will meet regularly as needed with the City of Denton staff during the development of the final design phase of the project. PRELIMINARY DESIGN (60 PERCENT) Preliminary plans and specifications shall be submitted to CITY per the approved Project Schedule. ENGINEER will develop the preliminary design of the infrastructure as follows. 1. Development of Preliminary Design Drawings and Specifications shall include the following: • Cover Sheet and General Notes Sheet • Overall Sewer Layout and Control Sheets. The sewer layout sheet shall identify the proposed sewer main improvement/ existing sewer mains in the vicinity and all sewer appurtenances. • Coordinates on all P.C.'s, P.T.'s, P.I.'s, manholes, valves, mainline fittings, etc., in the same coordinate system as the Control Points. • Sewer Plan and profile sheets at 1"=40' which show the following: proposed sewer plan /profile and proposed pipe size, manhole locations, existing service lines, existing utilities and utility easements, and all pertinent information needed to construct the project. Street addresses shall be provided on the plan view. It is anticipated that all of the existing sewer lines will be reconstructed in place to the ROW line. Right -of -way lines will be approximate and nominal, based on GIS data and /or readily available plat data. The field surrey effort will not include locating lot corners or ownership research. • The ENGINEER shall make provisions for reconnecting all identifiable sewer service lines which connect directly to any main being replaced, including replacement of existing service lines within City right -of -way or utility easement. When the existing alignment of a water and sanitary sewer main or lateral is changed, provisions will be made in the final plans and /or specifications by the ENGINEER to relocate all service Attachment A - Page 3 of 8 EXHIBIT 4 lines which are connected to the existing main and connect said service lines to the relocated main. • The ENGINEER will prepare special details for water and sewer line installation and /or replacement that are not already included CITY's standard details. 2. Constructability Review • Prior to the 60 percent review meeting with the CITY, the ENGINEER shall schedule a project site visit to walk the project. The CITY will be notified of the site visit and may attend if desired. If the CITY attends, the ENGINEER will summarize the CITY's comments from the field visit and submit this information to the CITY in writing. 3. Utility Clearance • The ENGINEER will consult with the CITY's Water Utilities Department, and other CITY departments, public utilities, private utilities and government agencies in an attempt to determine the approximate location of above and underground utilities, and other facilities (current and future) that have an impact or influence on the project. 4. Traffic Control Plan • Traffic Control and Phasing shall be the responsibility of the construction contractor.. 5. Storm Water Pollution Prevention Plan • The SWPPP shall be the responsibility of the construction contractor. DELIVERABLES • 4 copies of the preliminary design plans will be delivered to the City along with the Preliminary Opinion of Probable Construction Cost (2015 Wastewater Collection System Rehabilitation Project). • ENGINEER shall prepare and distribute meeting minutes from the Preliminary Design Review meeting. • ENGINEER shall not proceed with Final Design activities without obtaining the CITY's approval of the Preliminary Design Plans. FINAL DESIGN (90 PERCENT) AND FINAL CONSTRUCTION DOCUMENTS (100 PERCENT). Upon approval of the Preliminary plans, ENGINEER will prepare construction plans as follows: 1. Development of Final Design Drawings and Specifications shall include the following: • The final plans shall include completed versions of all plan sheets associated with the preliminary plan submittal plus the CITY's standard details and any other plan sheets that were identified during the review of the preliminary plans or the development of the final plans. • Proposal, technical specifications and documents not covered by the CITY's standard specifications and contract documents. The bid documents will be Attachment A - Page 4 of 8 EXHIBIT 4 structured such that each replacement identified above will be a separate section and could be eliminated from the construction project after bids are received, at the CITY's discretion. • Final plans and specifications will be submitted to CITY per the approved Project Schedule. • Following a 90% construction plan review meeting with the CITY, the ENGINEER shall submit Construction Documents (100 %) to the CITY per the approved Project Schedule. Each plan sheet shall be stamped, dated, and signed by the ENGINEER registered in State of Texas. • The ENGINEER shall submit a final opinion of probable construction cost with both the 90% and 100% design packages. DELIVERABLES • 4 copies of the final design plans (90% and 100 %) will be delivered to the City. For the 2015 Wastewater, Collection System Rehabilitation Project, specifications and a final Opinion of I��'robable Construction Cost. • ENGINEER shall prepare and distribute meeting minutes from the Final Design Review meeting. BIDDING & CONTRACT AWARD PHASE (2015 PROJECT ONLY) For the 2015 Wastewater Collection System Rehabilitation Project, the ENGINEER will provide to the CITY a Notice to Bidders for advertisement of the project for bid,. The CITY shall bear the cost of advertisement. The ENGINEER shall provide up to 15 CDs and hardcopy sets of construction plans, specifications and contract documents for use in obtaining bids, awarding contracts, and constructing, the project. Additional sets of plans required will be considered Additional Services and will be paid for by the CITY at commercial printing rates. The CITY shall be responsible for dispersing all plans and specifications from its purchasing department to prospective bidders. 2. ENGINEER will provide technical support to the CITY during the Bidding & Contract Award phase by responding to bidder and CITY questions, attending a Pre -Sid meeting, attending the Sid Opening, reviewing the bids„ preparing a bid tabulation (if requested), reviewing bidder qualifications and references, and making a recommendation of award to the CITY. ENGINEER will prepare necessary addenda during the bidding phase for distribution by the City of Denton Purchasing Department. Attachment A - Page 5 of 8 EXHIBIT 4 CONSTRUCTION PHASE Construction Support The ENGINEER will provide limited construction support for the project within the scope of Basic Services as outlined below. Detailed daily construction inspection and project oversight will be performed by the CITY. Any construction phase services requested by the CITY beyond those described below will be provided as Additional Services. Prepare and submit record drawings (electronic and Mylar) based on information provided by the Contractor and the City inspector. The fee shown for preparation of record drawings assumes that the project is constructed substantially in conformance with the plans and specifications. Extensive deviations from the plans will require additional record drawing effort that is not anticipated in the scope of this agreement. This determination will be made jointly by the CITY and the ENGINEER. Preparing record drawings that include significant changes will be provided as Additional Services. SPECIAL SERVICES FIELD DESIGN SURVEY TNP survey field crews will perform an As -Built design survey with spot elevations locating all above ground visible improvements within the existing ROW for said streets including all intersections and driveway approaches. Z All visible above - ground utilities within the current right of way of said streets shall be located horizontally and vertically with measure downs. Crews will attempt to locate cleanouts situated within the property lines of the adjoining landowners and will survey approximate Finish Floor elevations of all structures for service rerouting near Fouts Street between Oak Street and Hickory Street (N. Texas Blvd.). The City will obtain Right of Entry for those lots along Oak Street and Hickory Street that will require services to be constructed to the rear of the structures. All other data will be acquired without entering private property. 3, All survey data collected will be processed drafted and created within Autodesk Civil 3d. An electronic cadd file will be provided according to the City of Denton's standards showing all improvements located. All vertical data will be based on the City of Denton's benchmark datum. 4. No boundary or right -of -way data will be acquired, lot corners will not be tied, and no property research will be conducted. Attachment A - Page 6 of 8 EXHIBIT 4 ITEMS TO BE PROVIDED BY CITY TO THE ENGINEER The CITY or the CITY's designee will provide or make available to, or assist the ENGINEER in obtaining the following services, information and materials upon request: 1. Available past studies, correspondence, materials, TV logs and /or tapes, and mapping relative to the project. 2. GIS shape files that include layers such as buildings and existing utilities. 3. City will obtain Right of Entry for lots on Oak Street and Hickory Street (N. Texas Blvd.) so that surveyors can obtain information to the rear of the houses. 4. Assistance in obtaining data from third party sources which is available to the CITY at no cost to the ENGINEER. 5. Current City of Denton Standard Details, Specifications and /or Contract Document data, such as required prevailing wage rates. PROJECT SCHEDULE 1. For the 2015 Wastewater Collection System Rehabilitation Project Field Surveys Complete within five (5) weeks of written Notice to Proceed from the City. Preliminary Design Design will commence on each section of the project as field data is made available. Complete within ten (10) weeks of written Notice to Proceed from the City. Final Plans Final plans and specifications, at 90% complete, will be submitted within four (4) weeks of CITY approval of Preliminary design. If there are major design changes required, this schedule may need to be modified. Bid Documents Complete plans and bid documents (100 %) will be submitted within two (2) weeks of receipt of final plan review comments from the City staff. Attachment A - Page 7 of 8 EXHIBIT 4 2. For the 2016 Wastewater Collection System Rehabilitation Project Field Surveys Complete within twelve (12) weeks of written Notice to Proceed from the City. Preliminary Design Design will commence on each section of the project as field data is made available. Complete within twenty four (24) weeks of written Notice to Proceed from the City. Final Plans Final plans and specifications, at 90% complete, will be submitted within four (4) weeks of CITY approval of Preliminary design. If there are major design changes required, this schedule may need to be modified. This schedule assumes an orderly progression of the ENGINEER's services. Delays beyond the control of the ENGINEER may be cause for extension of this period of service. If CITY has requested significant modifications or changes in the general scope, extent or character of the Project, the time of performance of ENGINEER's services shall be adjusted equitably. Attachment A - Page 8 of 8 EXHIBIT 4 ATTACHMENTS' SCHEDULE OF FEES 2015 and 2016 Wastewater Collection System Improvements Project CITY OF DENTON A. BASIC SERVICES: For work performed by the ENGINEER within the scope identified in ATTACHMENT A, Itemized Scope of Services,, the ENGINEER will be reimbursed as described below: 1. Labor The following fixed fees shall be paid to the ENGINEER for labor involved in the various items of work within the scope of Basic Services identified in EXHIBIT A: 2015 Rehabilitation Project Design Phase $ 82,980 Bid Phase $ 3,600 Construction Phase 2,300 Subtotal $ 88,880 2016 Rehabilitation Project Design Phase $ 99,550 Construction Phase 2,300 Subtotal $ 101,850 2. Direct Expenses Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier services, etc. will be reimbursed to the ENGINEER at his direct invoice expense with a not -to- exceed amount of: $ 2.500 3. Total Fee for Basic Services TOTAL (BASIC SERVICES) $ 193,230 Attachment B— Page 1 EXHIBIT 4 B. SPECIAL SERVICES: Work performed by the ENGINEER outside the scope of Basic Services identified in ATTACHMENT A, Itemized Scope of Services, shall be considered Special Services, as identified in ATTACHMENT A, Special Services to be provided by Engineer. The ENGINEER will be reimbursed for Special Services as described below: Labor The following fixed fees shall be paid to the ENGINEER for labor involved in the various items of work within the scope of Special Services identified in ATTACHMENT A: Design Field Survey (2015 Project) $41,000 Design Field Survey (2016 Project) $52,500 Progress payments for these Special Services shall be paid to the Engineer by the City on a monthly basis based on the estimated percentage ( %) of the total work effort completed during that month less any payments for previously invoiced services. C. ADDITIONAL SERVICES: Work performed by the ENGINEER outside that scope identified in EXHIBIT A, Scope of Basic Services, shall be considered Additional Services. No Additional Services are anticipated for this project. The ENGINEER will be reimbursed for Additional Services, should they be requested, as described below: Labor ENGINEER shall be reimbursed on the basis of negotiated fees for each item of service provided, as mutually agreed to by the ENGINEER and CITY. 2. Direct Expenses Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier services, etc. will be reimbursed to the ENGINEER at his direct invoice expense. Attachment B— Page 2 EXHIBIT 4 D. SUMMARY OF FEES: 1. Basic Services 2015 Rehabilitation Project Design Phase $ 82,980 Bid Phase $ 3,600 Construction Phase $ 2,300 Subtotal $ 88,880 2016 Rehabilitation Project Design Phase $ 99,550 Construction Phase $ 2,300 Subtotal $ 101,850 Direct Reimbursable Expenses $ 2,500 TOTAL (BASIC SERVICES) $ 193,230 2. Special Services Design Field Survey (2015 Project) $ 41,000 Design Field Survey (2016 Project) $ 52,500 TOTAL (SPECIAL SERVICES) $ 93,500 3. Total Fees for Project TOTAL FEES $ 286,730 Attachment B— Page 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -131, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a Professional Services Agreement for Design and Engineering Services relating to the Mingo Road Widening and Improvements at Cooper Creek project; providing for the expenditure of funds therefor; and providing an effective date (File 5758- awarded to Graham Associates, Inc. in an amount not -to- exceed $315,386.00). FILE INFORMATION In October 2007, the City of Denton retained Jacobs Engineering Group (Jacobs) to analyze flood mitigation measures in the Cooper Creek drainage basin as part of a slate of projects associated with City Council's approval of the sale and delivery of approximately $7 million in Certificates of Obligation (COs). Jacobs prepared a report entitled "Cooper Creek Flood Mitigation Preliminary Engineering" in July 2009 that set forth a number of alternative mitigation measures, including the construction of the detention pond at Strickland Middle School which has since been completed. In addition to looking at the potential benefits of regional detention ponds, the report also discussed various measures to improve capacity within the basin downstream of these ponds. One of the downstream projects involved the construction of improvements to the City's bridge on existing Mingo Road just west of Loop 288 as well as the adjoining Union Pacific Railroad (UPRR) bridge in order to achieve a 100 year storm capacity design in these structures. Jacobs' analysis showed that the existing UPRR structure had a storm capacity design close to the 50 year event, which would determine or control the capacity of the City's new bridge on Mingo Road (the City's bridge is upstream of the UPRR bridge). The report talked briefly about the possibility of increasing the capacity of the railroad's bridge, but the consultant assumed that this was not an option and instead looked at a high flow bypass channel under the UPRR line to attain the necessary additional capacity. Jacobs' recommendations included raising the surface of Mingo Road for approximately 1,000 feet, increasing the capacity of the City's culverts in Mingo Road to match the existing UPRR bridge capacity, and adding a high flow bypass channel and two to four 60 -inch diameter by 160 feet long culverts under the railroad. The number of culverts to be installed depended on whether or not maximum detention (3 ponds) was added upstream in the basin. Since the City was only installing one pond at that time because of available funding, the option selected involved the use of four bypass culverts. The intent of adding culverts under the UPRR line along with the increased capacity of the City's bridge would be for both structures to pass the 100 -year storm event. City of Denton Page 1 of 3 Printed on 2/12/2015 File #: ID 15 -131, Version: 1 FILE INFORMATION (CONTINUED) Following discussions with UPRR on their requirements for installing the bypass culverts, staff asked UPRR if they would instead consider replacing their bridge, which is an older timber structure, with a new structure having a 100 -year design storm capacity if the City participated in the costs of this upgrade. The benefit of this option was to avoid constructing the bypass culverts and channel, which were projected to be expensive to construct as well as labor intensive from an operations and maintenance standpoint, and instead place the capacity improvements within the main channel. After somewhat lengthy discussions back and forth, UPRR agreed that this option was desirable and moved forward with their design of the railroad bridge. Staff proposed that the City's share of construction should be around 20 %, which is consistent with local participation on other transportation projects. UPRR concurred and informed staff that the City's share in the railroad's project would be an estimated $135,000.00. UPRR was informed by staff that this dollar amount was acceptable to the City and was asked to draw up a contract to this effect. The contract with UPRR was approved by City Council on May 6, 2014 and bridge construction was completed in fall 2014. A preliminary opinion of probable cost from Graham Associates, Inc. for the 100 -year capacity bridge and the raising of Mingo Road is estimated at approximately $1,884,000.00. The Drainage Department has funding available to pay for the design and construction costs for the larger capacity bridge and improved roadway through existing bond funds. The Engineering Services Department requested a proposal from Graham Associates, Inc. to provide the engineering services associated with this project. The proposed fee of $315,386.00 for the professional services includes amounts for: 1. Basic services (preparation of construction plans, coordination with UPRR, traffic control design, utility coordination and bidding phase services) in the amount of $96,790.00; 2. Additional services (design surveying, surveying for FEMA permits and hydraulics, United States Corps of Engineers permitting, hydraulics and hydrologic analyses and permitting, geotechnical analysis, and right -of -way mapping and pinning) in the amount of $205,131.00; and 3. Reimbursable expenses in the amount of $13,465.00. Basic services represent approximately 5.14% of the projected construction cost. The total contract amount represents approximately 16.74% of the projected construction costs, with roughly two thirds of these additional services expenditures being attributable to hydraulics analyses and permitting efforts. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. The negotiated fee is consistent with the level of effort required for a project of this nature and complexity. RECOMMENDATION Staff recommends approval of the Professional Services Agreement between the City of Denton and Graham Associates, Inc. in the not -to- exceed amount of $315,386. PRINCIPAL PLACE OF BUSINESS City of Denton Page 2 of 3 Printed on 2/12/2015 File M ID 15 -131, Version: 1 Graham Associates, Inc. Arlington, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the project as defined in the Professional Services Agreement. FISCAL INFORMATION The funding for this project will come from Drainage Capital Fund account 650043455.1360.21100. Requisition 4123020 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Ordinance Exhibit 2: Professional Services Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Frank Payne at 349 -8946. City of Denton Page 3 of 3 Printed on 2/12/2015 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR DESIGN AND ENGINEERING SERVICES RELATING TO THE MINGO ROAD WIDENING AND IMPROVEMENTS AT COOPER CREEK PROJECT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5758— AWARDED TO GRAHAM ASSOCIATES, INC. IN AN AMOUNT NOT -TO- EXCEED $315,386.00). WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with Graham Associates, Inc., to provide professional engineering services for the Mingo Road Widening and Improvements at Cooper Creek project, a copy which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5758 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR EXHIBIT I ATTEST: JENNIFER WALTERS, CITY SECRETARY m APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 2 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of , 2015, 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 Graham Associates, Inc., with its corporate office at 600 Six Flags Drive, Suite 500, Arlington, Texas 76011 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, but shall not be limited to the following major components (for a more precise or comprehensive description of the Scope refers to Exhibit 2, Attachment E): A. Conceptual Design Plans Task l: Mingo Road - Conceptual plans (15% Plans) for this section of the project shall be prepared to such detail as is necessary to resolve all conceptual issues. Conceptual plans must be approved by Owner prior to Design Professional commencing with the preparation of preliminary design construction plans. 1. Horizontal alignment of proposed paving, etc. 2. Vertical alignment of proposed roadway. 3. Opinion of probable construction costs. 4. The approximate location of all existing and proposed driveways within limits of the project. 5. The location of all trees with a diameter of six inches (6 ") or greater within limits. 6. A preliminary drainage study, including drainage areas, location and size of existing drainage facilities, the approximate size and alignment of proposed drainage facilities, and approximate discharges. 7. Approximate dimensions of existing and proposed right -of -way and easements. 1 Hot A EXHIBIT 2 Task 2: Railroad 1. Our design of the roadway bridge with railroad. 2. Horizontal alignment of Mingo Road bridge with railroad design 3. Vertical profiles of proposed roadway and track. 4. Typical sections of railroad and adjacent Mingo Road. 5. Sequence of work. 6. Summary of work to be completed by City of Denton. 7. Submitting plans to railroad for coordination. 8. Work out proposed channel hydraulics that will work for the railroad bridge and Mingo Road bridge that will meet the City of Denton and FEMA requirements for Cooper Creek. Preliminary Design Construction Plans Task 1: Mingo Road — Prepare 30% Plans, Specifications, and Estimate (P.S. & E) documents. 1. Preliminary plans title sheet with index of sheets. 2. Project layout. 3. Existing/proposed typical sections. 4. Preliminary plans summary sheets. 5. Alignment sheets. 6. Plan/profile sheets for all alignments (horizontal and vertical alignments final upon approval of 15% plans level). 7. Preliminary plans intersection layouts if required. 8. Drainage area maps. 9. Hydraulic computations. 10. Preliminary plans culvert layouts. 11. Preliminary plans storm sewer layouts. 12. Preliminary plans water and sanitary sewer layouts only. 13. Pavement design report. Prelitilillary lzight- of -W<ty Doculneots, 60 x, 111a ns 1br N/litwo Road Preliinittar Construction Plans. Task 1: - Right -of -Way Determination for the project streets - In conformance with City of Denton standards, Design Professional shall survey, render field notes, and prepare detailed plans (right -of -way strip maps) and individual parcel exhibits for any additional right -of -way and /or easements, including temporary construction easements, needed. Design Professional shall also set control points, which shall be based on NAD -83, on both sides of the road. The required items are necessary for the acquisition of right -of -way required to construct Project. This information shall be required prior to acceptance of final construction plans. 2 IC EXHIBIT 2 Task 2: Mingo Road (60% Plans) - At such time as Design Professional is directed by Owner, Design Professional shall prepare the following: 1. Title sheet with index of sheets. 2. Project layout. 3. Existing/proposed typical sections. 4. Plans summary sheets. 5. Plans traffic control plan. 6. Alignment sheets. 7. Plan/profile sheets for all alignments. 8. Intersection layouts (if any required- additional services). 9. Miscellaneous roadway details. 10. Drainage design. 11. Drainage area maps. 12. Hydraulic computations. 13. Water and sewer plan (if any required- additional services). 14. Culvert layouts. 15. Storm sewer layouts. 16. Utility exhibits. 17. Traffic signal layouts(if any required- additional services). 18. Illumination layouts. 19. Signing layouts. 20. Pavement marking layouts and delineation. 21. Erosion Control layouts. 22. Cross - sections. The preliminary plans will include drainage improvements design, and preliminary work on utility relocations. (utility coordination) Final Construction Plans Task 1: Final Design Construction Plans (90% Plans) — Mingo Road 1. Construction plans. 2. Bid proposal. 3. Special specifications as required. Task 2: Union Pacific Railroad 1. Coordination. 1 Subsurface Utility Engineering Plans in the area to determine location of existing utilities to aid in the design of improvements. Task 4: Right -of -Way 1. Prepare final right -of -way plans and documents for the project.. 3 EXHIBIT 2 E. 100 %Construction Plans, Right -of -Way, and Specifications Task 1: 100% Mingo Road 1. Revise plans per Owner's review comments. 2. Revise specifications /bid documents per Owner's review comments. 3, Revise right -of -way documents per Owner's review comments. Task 2: Union Pacific Railroad 1. Any changes to plans requested by Owner per railroad. F. Miscellaneous Requirements — 1. Design Professional shall furnish, upon request by Owner, one (1) set of film reproducibles of the "Final" approved and dated plans. Design Professional shall submit an electronic copy of the drawings in a format acceptable to the Owner. 2. The Design Professional shall also prepare Record Drawings utilizing the construction plans based upon redline markups reflecting any field changes. The Contractor shall prepare and supply the redline markups to the Design Professional after construction is complete. Design Professional shall submit one (1) set of film reproducibles and an electronic copy of the Record Drawings in a format acceptable to the Owner. in EXHIBIT 2 SECTION 2 COMPENSATION Total compensation for the Design Professional contemplated under the terms of this agreement shall be $ 315,386.00 for all services including reimbursable expenses. The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $96,790.00. 2.1.2 Progress payments for Basic Services shall be paid monthly based on the actual work satisfactorily completed per month in each phase as a percentage of the overall compensation for that phase, with the following percentages of the total compensation for the Basic Services for each phase of the Project: Schematic Design Phase 20% Design and Development Phase 30% Construction Documents Phase 30% Bidding Phase 10% Construction Phase 10% 100% 2.2 ADDITIONAL SERVICES 2.2.1 For Additional Services the total compensation shall be $ 205,131.00. Compensation for Additional Services shall be based on actual services authorized and performed with lump sum or maximum not to exceed subtotals depending on the service provided all as shown in Exhibit 2, Attachment A. The schedule for the hourly rates is attached as Exhibit 4. 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services, geotechnical services, right -of -way services, etc. shall be based on a multiple of 1.1 times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.05 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $13,465.00 without the prior written approval of the Owner. This amount does not include appraisals, escrow fees, abstract fees, title fees, FEMA review fees. 5 EXHIBIT 2 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: Exhibit 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. Exhibit 2. The Design Professional's Proposal Attachments A through E: Attachment A — Summary of Engineering Fees Attachment B — Projected Plan Sheets Attachment C — Organizational Chart Attachment D — Estimate of Construction Costs Attachment E — Scope of Services and Deliverables Exhibit 3. Project Schedule Exhibit 4. Schedule of Rates This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON, TEXAS A Municipal Corporation :• ATTEST: JENNIFER WALTERS, CITY SECRETARY GEORGE C. CAMPBELL CITY MANAGER APPROVED S °1' 1 ;G 1 tlR ANITA 11° 1 S ' 1. " A 'Ol T l „` i BY: GRAHAM ASSOCIATES, INC. A Corporation ATTES "1:° BY t �. ... .. -.� 0 BY: _• .. W. J1 ,,.1 ^ "C W I L LlAM S, P. E. PRESIDENT EffifiY i CITY Or DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement ") and proposal (the "Proposal ") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of Uuese 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 die preva'din ltrrw6essioanaal Standards rurnsistclit With dae level of ware Lind ski l ordinarily exercised by members of the same profession currently practicing in the same locality under shnflor conditiown , including.„ n .,r�s.5narta�nlrlc, initrrniucal jtaaCtnrue °rpt5 and prompt tinrcly actions (the "Degree of Care "). The Services shall be performed as expeditiously as is consistcratt with the, llagroo of Care: necessxnty ror flits orderly progress of the illo,leo[ Upon request of the Owner, the Design Professional shall submit for the Owner's approval ut schedute f'or die Pcrlbunamo of tluc Srrviccs which may be a djumed as tile Pnu:lject proceeds, and shall include allowances for periods of time required for the Owner's rcvua w ,und lilt approva: t of s omissions try rawhoritics having jurisdiction over the Pretjea Time limits established by this schedule and approved by the Owner shall not, except trrr reasonable Cause,, be CWceda ^d by the Design Prolle,ssianA or fawner, and airy adjustments to this schedule shall be mutually acceptable to both parties. 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those 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 tie Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in temus of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed -upon program, schedule and construction budget requirements, flue 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 frond regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the 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 construction. 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the 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 .ProJe t as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable kaws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional represents that the Document', and spec ificidions will be sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2.4.1 Based on Vie approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the 1 csug,n Proressionrd shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements Jbr the comtrrre:tioo 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 the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. 2.4.3 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 in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without Page 1 of 8 H: \Mist \Blank PorniAGENERAL CONDITIONS - ARCHITECT- ENGINEER Revised 052209.doc Revised 5 -30 -02 limitation, the competitive sealed bidding process. Although the OAMMAX-eAhe advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the 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, 2.6.1 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 the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 2.6.2 The 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 the Standard Specifications for Public Works Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities 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 and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional shall have authority to act on behalf ofthe 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 consouction site at lam one time a week, while construction is in progress, and as reasonably necessary while construction 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 in a manner indicating that the work when completed will be in accordance %vith [lie Contract Documents. Design Professional shall provide Owner awritten report subsequent to each on-site visn. On flirty basis of on -site observations the M�sign Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degm,,c of Care and thfigence in discovering and promptly wporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors, The Desityi Professional represents that lie will iblkm Dezwo orCare in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of tile Design Professional's Services hereunder or of the 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 shall not be responsible for construction 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 necordame with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professiowd shall tint have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions offlic work, 2.6.7 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. CO111lnUlliCatiODs by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constikile an represcritation 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 Contrlwtoi's 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. 'file foregoing representations are Subject to minor deviations from the 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 in the amount certified. However, the issuance of a Certificate for Payment shall not be arepresentation that the Design Professional has (1) reviewed construction means, methods, 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 Cot l(ract Liocuaruentw whellever the F)csigil Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design llroRssiolsal will have alitiviiy to recinire additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, instllflcd or completed. However, 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 the 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 the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when collipIcted, will be it) conipfiIJAICV, Wilh fliC f0(JLPh_CJnCnts oraic Contract Documcnts. The Design Professional shall act with such reasonable promptness to cause no delay in 111V work Or in the construction of the O' Yncr or of sicpvirate cowrjlAoEs, while allowing sufficient time in the Design Professional's professional judgment to permit a(kxJl1:;,1tC rcvjclv Revlcw ONIdisubliflitals is not c"iducled lbi the purpose of detemnining the accuracy and completeness of other details such as dimensions and quantifics, or fbir irmtructioils for installation or peffbi-mauce of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety 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 item is a component. When professional certification of performance characteristics Page 2 of 8 H:\Misc\Blaiik Fornis\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 of materials, systems or equipment is required by the Contract DocdEXLJMelig2Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 Ilse Dc sfryau f'utufarssional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data irdeenaecl necessary by the I9 siga 1'aof6sion tf as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the ( `ontnnc.t Documents, and may 1"thorize nrinol eb rng"cs in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not watt cnalststettt )vide the intent of Rlic Cn aaltr nct Doc cnna,iats„ 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 the 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 reconnnnendations on matters concerning performance of the Owner and Contractor under 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. 2.6,16 hncapn0Udi0was tend dca isions tW tlac Desigot Vic:4bsswnnl shall he t.aria.,;Wcnt with the intent of and reasonably inferable fi -ono the Contract Documents and shall Inc aaa wriIhigl ear ill Huns loaam of dt aMugs WI tell m aking sanch ill let p6ci alia:ans and initial decisions, the Design Professional sliall etadeavol, to secatoe^ fitiflifia I performance by faardt Oavner' auntd C caartranctor, and SIVill not be liable for 1c.sults or intcrpnalatiotus or decisions so rendered in good faith in accoadaince nvith all tlae provisions of this a'%grecraetat and in 1110 toy'c.nct, of noghgenace, 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 of the work as provided in the Contract Documents. 2.6.18 The Design Professional (1) sltall rc infer tit a vices under the Ag eenacarat n a accotfifflice with thc Degree of Care; (2) will reimburse die Owner for all damages caused by the defective designs the Desaa n Profess aratl4al prepares; and (3) by ac•Icatovafcd+ ntg fnayrmetat by tile Owner of any fees due, shall not be released from any rights the Owner may have under the Ax;lvonimtor damilnish any of the I.lesugra oblignf ions llrercr.mder. 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. 11.1 t "1 "lie seavic,es descrilrccl in this Article 3 are not hacluded ill Basic Sc °ri ices uladess sea identified in tllre Agreement or Proposal, and they shall be paid for by the tlwuer as provided to the Agreement, ill addidon to the contpcnsation for I1-rsic. S ry ace: ^ns. The services dcsetxbcd tinder Sections 3.2 and 3.4 shall only be provided if aautltttrt ed rat oattaforrratwtf ian wr¢ttan by tlrc f N vuc,a'. If services described ctarede:n° te'tnattrrag ntt. Atftftliaraiuf Scivic.es aaa Sectiou 3.3 are regtured due to circumstances beyond flue 1 tt,sigat f "rofesstoaaaf's ccaruttaaf, the I:7cwtf „ta SIMH rnol.ify flue f MuCr in writing and shall atot caammcta,ce such additional services until it receives written alrprovaf fr0in tile, OVVI ta.r to tat o«cd. f1 the fawner antluc ands inn writing that all or part of such Contingent Additional Services are not required, the Design Professional Shaul have no obligation to provide 111M C, services Onviier wilt Inc responsible for compensating die Design Professional for Contingent Additional Services only if they are not required due to the aaer,ligcrtec or faa,rlt of Desnga Prof ssional. 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 ill 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. 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including 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. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, siZe, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and famishing services required in connection with the 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 perfomnance of either the Owner or Contractor under tie Contract for Construction. Page 3 of 8 H:\Misc \Blank Forams \GENERAL CONDITIONS - ARCHITECT - ENGINEER Revised 052209.doc Revised 5 -30 -02 EXHIBIT 2 3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to those 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 of the Construction Documents Phase. 3.3.9 Nanlawn't.lnst unrrlirn , anyllanr y csraal aina�crtl ill the Agreennarnt, lartrlparsaul rrr these C1ene ral (: arnaaitannns to the contrary, all services described in this Article 3 that are caused or, nau ess'iCmt.d ill wlnrfla: oa in part d is tug the ileghf,eut racy aaa anaanissiaara trtl llu flesihu 1'rofessnonal shall be performed by the Design Professional as apart of the Basic Services under the At naa nra.urt with no additional owls ewu ataon above Iliad beyond than COMPensation Clue the Design Professional for the Basic Services. The intervening or canrucnnnerrut; ne;'hgenoe offfic Owner ne^r shall not Innrt die, l Des io I Prole siorarat � oblif atruns unnder this Subsection 3.3.9. # ffizul1 1 # 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.4.3 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 future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.6 Providing services to verify the accuracy of drawings or other information furnished by the 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 fumiture, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to die Owner of the final Certificate for Payment and expiration of the 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 of the Project provided as a part of Basic Services. 3.4.16 Providing any other services not otherwise included in 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, showing significant changes in the work made during con- struction based on marked -up prints, drawings and other data fuurnished by the Contractor to the Design Professional. 3.4.18 Notwallastauuelirtl, aannytlnin { corllnraatd in the Ateement„ Prot.xlsaf or these tierncfnl f. "on °ditir;ans to die* contrary, all sa.rvieans dewerilterl ill this Article 3 that are caused or rueerssnttntt d ill nvhole or in part due to the ncgligent actor orilisson of the Designn Professional shad be performed by the I le sift;a I��anofessional as a part of the Basic Services under the Agreernaenl with no addidonrd Coll at eln4urioo above and beyond the col ipcomfion due the Design f�r�tafaassnoaag ftrr the 13�:ie Services. The intervening or ¢onu,aauatt 1108figolc „rut "then t„twrucr °shall not hnrit (he l'jcsngar lIroti^ssionat's otsfufa,.ntions unnder this Subsection 14, 4.1 The (Aviler ( viler consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design coautitraintti and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci- fivM11Y described ill Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. Page 4 of 8 H: \Misc \Blank Fornns \GENERAL CONDITIONS- ARCHITECT - ENGINEER Revised 052209.doc Revised 5 -30 -02 4.4 The Owner shall designate a representative authorized to act 0EXHaIaA11121f with respect to the Project. The Owner or such authorized representative shall render decisions in a timely 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. 4.5 Whcic ulpphcatikr, tile ()waterslmaatl huali +ala uavuys dczcrdarral; „pllysrarait clr ar"Ic.teaistics, leg °ad hnaitations and utility ocittrons fear tile aaf t1m„ .,•. y c Pa c fact, tr9rd a written i surveys airier lc dal raufcM7u'stankrotm lac -tCl onclrrcic„ as twplr£ucrrt lu gr';tclt.s auaucl lines trfSQa' tGs, allc !s„ u;aWCnra ^r'stt rood urd "oi , u.y,a description of the The s } I I taut property and slrtaa.tirres aaaljarr, „crud du,tuottp c itf,Qifs of1wuy, iealrra:ticra'ty e,arscaamicsaads, cmatla'dr,ii'liutar'ils, zaannug;, ticecl reshic°lions, I.aciarnd�at•iC'.a� i,atel ai;ir'ala,acars r t 1 dilmusiorus raid aaecessaary (Uri rcahinrili r t as sitar;, locations, p �„ Car c^sistiaag latadclirm +�s aatlic�r rmg?rrmvi„iamr.rits said Imes'; aaital tntiartpraitiCmia aa'uraccaaarnf. auvraatrmlrlc rrldrt )c sea °vic.cs rarer lines both public armd Private, above toad b0mv f�,a adcr, im,Itaclraasf if acrd deptlts. All I[ le raaforuaatiolI a °.tam fire survey ahadl lieu, rc:fcrcucW to I project ba,ama fnmmaa °k.. 4.6 Where applicable, die t„tvancr shall firmish the services of geotechnical engineers ivlac as stau h Scr vlc cs arc rolucMcd by tlae D sitgn Pnmtbssional. Such services may include but are not limited �o test boning s test pits, detenninations of soil bearing values pa lcrrhutioal tarts„ cv alai utrorls aaf h vardaaus auMieriaals„ ground corrosion and re- sistivity tests, including neccssary capendirui6 fear anticipating sub -soil conditions, with I epoats and a,pprol,asLite pro(cmional tccar�nuucndratiotts. 4.6.1 The Owner shall firmish die services of other consultants when such services are reasonably required by the scope of the Project and are requested by the 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 furnish 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 insurance 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, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be finished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in time absence of my negligence on the part of the Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner beconmes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the 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. 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional 5.1.2 The Construction Cost shall inchide lilt cirri at current nm ai lace rates of labor and materials fiumished by the Owner and equipment designed, specified, selected or specially provided for by tlae Design i"rcatcssiamia rl, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for con- tingencies shall be 'Included fr)g aurirket conditions ral, time time of bidding and for changes in the work during construction. 5.13 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. 5.2.1 Evaluations of the Owner's Project budget prctimin ary cstirraratcs of °Craarsttucticuaa Cost arrd detailed csunaatcs tat C;craas°trtac£iagru Cost lareParrad by the Dcsign Professional represent the Design Professional's ksl Audf,ment m, a desi0i Imrrufus +raaam,ul fauuahal ivith the c,omiruction industry, it is rcco,tui;racl„ however, ditml racitlt)t the Design Professional nor the Owner has control over flie asst ol, bit)("”, auaalt ra ds air etiuil_imcail, over the Contractor's uaclfiods of dctenninillp dxitt prices, a:ar over competitive bidding or market conditions. Accordingly, tits Design Prokssionial cannot and docs not taarrtrul or tepresent that bids or cost proposals will amcat v�,a from the Owner's Project budget or from any estilliale oQ "( "'onslrtiction Cost or evaahrilion pf- eprire d or ntl.,recd to by Ilia Desaf�u Professional. J 511 No Iivcc limit C (;lost Shall be establisllied n5 condition oftic Agrepnent by the lainishitlg, Da f ostil or establishment ofr a r ie ct lm aget, tilass such fixed lard has been klgrc,cr „d upon ill tvr•iting stud sagged by the par¢res llierctoa lfcir le to li cd lirruit has lreerr esiahlis£icd to iuclirdc contingencies for desigr)„ laiclehuig tuba,£ price a.sc•rilatmeata�, to detvrnmitie cvlrat rruaalc,atla , •;� the: f:)� pf,ai 1 arrolcs ir'anal sliaull ba frc;tmrmittcd Included ill the Contract fro <atitara'nil, to rarxikt; reasonable adult mina o in ter l., etluipnmcul, compolae.rat systems +and tylvu of coustrrctaoma care to be l the scope ofthc Pro ec.t rind to inchtdc oar tile (. "outract. Doctanmcrmts aalletuate bids to aal�fI'm blue Craasslaircrliomm C' "rust: to llic fixcal dhiait. Ir "ixcaN liimiitls „, ifrtaty, skrall Q,tc aucar0W'.,d irr time Wil mitit of uua 'increase mat ttte (Ails +ict Stint occ;urrilio aallcr csctcution ofthecoritrac:t for (.onsinictioru, 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits time Construction Documents to the Owner, any Project budget or faxed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. 6.1 'floc Drawings, spec ificc„atuorms and otlmcr (Iaictuancills prepared by ilic Design prc'afcas£aauaal for• ilus Project ,re nof the e sar"r aof siatal "s service and shall laaaaruart, [Ile prraperty of the C"avvner upon tetramiutt'rlion or coillplclioll of than Agrcemejq, llaa. I)es,pfpi }'tam£`cssionail is entitled to retain e:aa cuaraients are intoid'cd only lac applicable 10 this PlojeO, amrarl Owner's Lase of stuc:h docatuuenls ill other° mro'ee Shalt arcs, ail d£l pens documents. Such c,la } Owner tim"'s any ofille infisr"llitituti Or Inaterhils developed aur+umit to the A rreemeta B .1 fs Other p he s tl)avmar sole ct isle aatac9 ife A se. In the event the 0 }, f, t tit ainirllrcr lrraltcct or f�arr olhirr faunytoses tluan are.,luc ^u;utrc ^cl ill the Agreement, the Design PRali„ssiciai,al is released l "rrarra Mmy aramd ;Ill daralrality relrulrrmg to tlmu,ir ruse ill that lrarapcat Page 5 of 8 H: \Misc \Blaamk Forms \GENERAL CONDITIONS - ARCHITECT- ENGINEER Revised 052209.doc Revised 5 -30 -02 EXHIBIT 2 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. 7,1 T1w i )esilit t "rol ssiorra@ utnay terurrnate the A1,,remera upon aural less than drirty (Gays wriltt.ur flolice should [lie Owner "- (ell la�� of tile A[,,recmcnl: t:@tron„ Ir no liaualt. of life DustglI I'ruatassiaa:nrtl C 1a.url siilaslrirtlu�tlly tuff l;a {.d'1iaruat tit <ac�(arrdu;ritr:e rovitli G @re Owner nq iy to °sanana4e dtt A }, r tiractrt rrr any l @r.rstz lluercol, with air without Cause upon Chart f.ttl drr •s r., y 4 ) w ptior mitten nolice to the Desihrt Prola ,sional. All work and laabor being per i'milled Older 11w A reorient shall ecaw malice„ Bcti,rrc the end of`the thru'ly('40 clay Period, Desr.ri 1 "raalcss = , torit clr errtr nlaoii Design 11C restiiran,r@ s rca,m:ilat ce, N a ) y l 1,� tort ( *� @tatll Invoice tluc C:twruer 1�ui aoCC svaror °Cc it ssitist "tuaatorily pt:rferutuaMu,i lrorrrir to tltua is °u.caiat trfsuclu ipartica;. T�Pra for lost or airilici@rated profits. All pkins, field sunvey�s, aurtd rather (,rta relented to tlic 1'rrt act ,Shall la . : 1 iagitaaurutt shall I.ae (sun l Craarirc property oaf tgac t °Dia "pta;r uop,aarw termipiratirrra tat "the Agrevi lent alad slrwulC lac prontptty dclivercml tia the O%vncr ill a reasonably orgarrlirctl tiirrn. ShraWd Owner suuhsca motl + con Design o services oil thc• l'ra� cct, Desio n Prows "siolud shrill cooperate irn,pnaviding, ill lunat "soon. l � tr "uct +vttlt ri iq «.av ft sr�ii l r olewsiaauual 1i��ar' a;r�aurlhrtanrii:art 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 the interruption and resumption oftlne Design Professional's services. 7.3 The Agreement may be temninated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for tennination. 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, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In the event of tennination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to tennination. 1 � S. L 1 Direct Pcrosrmincl 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 m and al;ory end Customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensiosis 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 and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. 8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out -of -town travel; long- distance communications; and fees paid for securing approval of authorities having jurisdiction 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 tine Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock -ups requested by tine 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 hi writing by the Owner. 1 � t• 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 8.3.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of tine Design Professional, compensation foe any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 83-3 When Compensation is based on rn percentage of Construction (: atst and gully portion'; of the Project are deleted or otherwise riot constuuetekd, compensation for thra a prrttlorrs of the Project shall be payable, Coat the extent services Lire Is rorined oim lhme portions, in accordance with the selua:alydc set Axth in Section 2 of the Agreement barred on (1) the lom.'St beano tide Bird or (2) if no such bid or propos "il is roceu +wed, the most recent preliminary estfimltc of Coristrirction Cost or detailed 00itrttatc of Construction Cost for- such portions of 11rc Project. Page 6 of 8 H:\Misc \Blank Fornms \GENERAL CONDITIONS - ARCHITECT - ENGINEER Revised 052209.doc Revised 5 -30 -02 8.4.1 Payments on account of the Design Professional's AdditiFbXM1&jrEljf6r Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. ARTICLE 9 INDEMNITY 9.1 The Desil: „n 1'rutcssiapwptu0 shall indemnify and save and hold harnfless the Owner and its officers, agents, and employees from and against any and all liability, ulfflnus, delminds, dniring,0” losses, and cAllenscs, including, but not Ihnited to court costs and reasonable attorney fees incurred by the Owner, and including, without hjniladon, daningvs liar bodily and personal indury, death and l)ropofly daninge, resulting from the negligent acts or omissions of the Design Professional or its officers, agc'llts, Or craployves, in lhe per6orniance of the AgnTmcill, 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 oll7governmental i1111111.11lity, Which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with all insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least all A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $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 ilijUly limits Of not less than $500,000 for each person and not less than $500,000 for each accident, and with property dania.ge limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10,5 The Design PlolLssional shall ftitnish insurallec Certificates Or instprame: pc4icivs to the Owner evidencing insurance in compliance with this Article 10 at the time Of the exceutioil of the Agreenlcla. The General 1,bability and Automobile Liability insurance policies shall name the Owner as all additional insured, the Workers' Colllperlsnlil:nl Policy Shall con(ain a waiver ol'subrugation in kivor sal, the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modifIed without thirty (30) days, prior written notice to Owner and Fksinn Profc.Wonal. In such event, the Design Professional shall, prior to the effective date of the Change cK cancellatioll, f6trikh ()WIler with M-01stillite certiticates of ftlsuvaolwc nwethik g, the requirements of this Article 10. 11.1 The Agreement shall be governed by tile 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 alld Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other parry to this Agreement and to the partners, suc"Sgws, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its hneresk in the AgIreenient without the written consent of the Owner. 11.3 The term Agreement as used herein includes the executed Agreement, the llrcymtd, 11lose (irileral Conditions and other refeivriced ill sectioll 3 of the Agreement which together represent the entire and integrated agreement between the Ownov and Dusign Prot'essional and s"J"lerse(tes all priol. 11Vgoliations" representations, or agreements, either written or oral. The Agreement may be amended only by wiftlea hisnunwnt SiDled by bodl Owner and Dcsign Profosiowit, Wilell nitetplelillo, the Agreement the executed Agreement, Proposal, these General Conditions and ]he other arttrpclrsgaeturts rvf�renccd in SGclion 3 oftlic Agreement shall lo, flt(: cxtelli that is reasonably possible be read so as to harmonize the provisions. However, should tile provisions of theso docinnents be in conflict s0 al'at thwy call not tw rellsollobty harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attachments 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 appr(l Val of Owncr, the Design Profess iona I shall have the right to i I lot H CIC reprosc, ntal, ioj ls; or 111 e des i gi i of I I ie Prs) ject , ji I el LI(jil lg pl 101,1,)p rapl us of the exterior and interior, aijja�,jjg the Design Professional's pl'onl0hunal and professional niaterills, The Dc'sign Prollessional's, UNlledals sh,;il not include the O� , vawr's confidential or proprietary infornimion if the Owner hzts prQviously advised lIlc Resign Professional in Writing offlw specs fic inf6n1,l(W cousidered by the 0%viler to be confi- dential or proprietary. The Owner shall provide pror6siolull credit flag dic, 11csign Professional on tile consillictiou 6gli and in the PtOmAtionlit nufleriah for tile Project, 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design 11rofesSioll,31, its cmployecs, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such appn)val be decIT➢Od 10 he LIM OSSUMpti011 of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subc011tlilctors, cage rte, and consultants. Page 7 of 8 K\MiscWlank Forn-is\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 •1-7. All notices, communicaijolls, and reports required or permitted undEWIMArAliall be personally delivered or mailed to the respective parties by depositing sahle in the Unitccf Stjltes a I arjj Ito the address shown below signature block oil the Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall In (IM"Ied O'cefive upon receipt by the party to whom such notice is given, or within three (3) days after mailing. 11-8 11 any Movisi0ii of1he AgroeMcni is foinid or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severablefroiii the remainder of flic Alolreemeja and shall 110t cause the remainder to be invalid or Unenforceable. In such event, the parties shall reform the Agreement to replace SLICII stricken pi,a)visj()H %vitll a VkjjiLI 'and enforccaMe prinision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional sliall colliply 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 performing 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 shall not in any way affect the substantive terms or conditions of the Agreement Page 8 of 8 H:\Misc\Blatik Fornis\GENERAL CONDITIONS-ARCHITECT-ENGINEER Revised 052209.doc Revised 5-30-02 Graham Associates, Inc. CONSULTING ENGINEERS & PLANNERS Mr. Frank Payne, P.E. City Engineer City of Denton 901 -A Texas Street Denton, Texas 76209 RE: Proposal for Professional Services Engineering Design of Mingo Road Widening and Improvements at Cooper Creek Dear Mr. Payne: Graham Associates is pleased to present this proposal to provide professional services for the survey, right -of -way acquisition, design, and construction administration to widen and improve Mingo Road at Cooper Creek. Our staff and sub - consultants proposed for the project are shown in the attached organizational chart (Attachment Q. The summary of fees is shown in Attachment A, which includes both basic and additional services. The estimate of construction costs for Vintage Blvd. is shown in Attachment D. The proposed scope of services and deliverables are shown in Attachment E. Proposed schedules are shown attached as Exhibit 3. The schedule of rates is attached as Exhibit 4. Graham Associates shall comply with the City of Denton's "General Conditions to Agreement for Architectural or , Engineering Services ". Our firm shall also meet or exceed the insurance requirements of Denton including a $3 million professional liability insurance policy. Payment for Basic Services listed in Exhibit 3 shall be made monthly based on proportion of services performed within each phase of work. Payment for Additional Services and reimbursable expenses listed in Attachment A shall be made monthly based on statement of services rendered or expenses incurred. Please contact me if you need further information. Respectfully Submitted, im M. Wagnon, P.E. CEO Graham Associates, Inc. TBPE Firm #F -t 191 Summit Office Park 1300 Summit Ave., Suite 419 Ft. Worth, Texas 76102 -4418 (817) 332 -5756 Fax (817) 336 -6909 Centerpoint Three 600 Six Flags Drive, Suite 500 Arlington, Texas 76011 -6356 (817) 649 -1914 • Metro (817) 640 -8535 FAX (817) 633 -5240 • Garland, Texas 0 840-6671 FAX (972)-840-6671 y GJ w � w bo� o O N u 4� O cz �r W�.. M n Ln ct r! y N ff L M 01 N M 6�! M "i NN ' -V, iVJ'"� +n '`vi ' ; f ,l 1 , Ov' co U a y �� + 4. ✓f u w 1, o O O ji'd�/ CI U , i w Uri, %6P4itUla Q U +� C 1, 1 Tyr f %1 � 1 5 EXHIBIT 2 O O O r` 64 U W U a�x o� H bA GJ w O A t4 O O A N u W t r � I 1 jg, / ll i �) i i f a� rl/ O OI J� 1a u / Vl 50 !o Ir y "t xti� u ea a N J Jtl w v u , x EXHIBIT 2 rJrf ' %„ o 'c o - ^t y I '!/F J Yma /z/ M O N UD j r" I%il,1j n M LM lR fN 01 W4 M i /i %/ f' r / , i CA r ✓ i" 1%r qQ N W vw L4 VIII /l ,t rj f r ` o �a ��� /j I/ V �, fi jg r �r /i1� h AiA c ao bA ' W 0 i %l o O 4 , 9 i Vifma ii CvL i X 1/ i �. �,f '' u° /' UN a if NII fi �V�' ° W'r; x C7 ;> rl;'jhr y !� u > 5 %/ V) N 0 O N G1 m CL EXHIBIT 2 Mingo Road October 2014 Basic Services - Mingo Road I. Construction Plans Senior Engineer 90 x 125 11,250 Senior Hydrologist 10 x 125 1,250 Registered Engineer 200 x 100 20,000 Tech IV 178 x 90 16,020 Tech III 120 x 75 9,000 Tech II 43.5 x 60 2,610 Clerical 20 x 35 700 Subtotal $60,830.00 II. Railroad Coordination Senior Engineer 10 x 125 1,250 Senior Hydrologist 10 x 125 1,250 Tech IV 8 x 90 720 Tech III 10 x 75 750 Subtotal $3,970.00 III. Mingo Road Traffic Control (close road) Senior Engineer 5 x 125 625 Registered Engineer 5 x 100 500 Tech IV 5 x 90 450 Tech III 10 x 75 750 Tech II 2 x 60 120 Subtotal $2,445.00 EXHIBIT 2 Mingo Road October 2014 IV. Utility Coordination Senior Engineer 2 x 125 250 Registered Engineer 10 x 100 1,000 Tech III 24 x 75 1,800 Clerical 6 x 35 210 V. Oualitv Assurance /Ouality Control Senior Engineer Registered Engineer Tech IV Clerical VI. BiddinLy /Construction Administration Subtotal $3,260.00 10 x 125 1,250 10 x 100 1,000 10 x 90 900 6 x 35 210 Senior Engineer 25 Registered Engineer 125 Tech IV 36.5 Tech III 29.5 Tech II 21 Clerical 15.5 Subtotal $3,360.00 x 125 3,125 x 100 12,500 x 90 3,285 x 75 2,213 x 60 1,260 x 35 543 Subtotal $22,925.00 TOTAL BASIC SERVICES $96,790.00 Additional Services - Mingo Road I. Design Surveying 1) Control Survey Tech IV 2 Man Crew Tech III 2) Road Topog Tech IV 2 Man Crew 3) Topog Railroad Tech IV 2 Man Crew 4) Boundary Survey /for R/W Tech IV 2 Man Crew Registered Surveyor EXHIBIT 2 Mingo Road October 2014 10 x 90 25 x 120 1 x 75 Subtotal $3,975.00 8 x 90 77 x 120 Subtotal $9,960.00 4 x 90 15 x 120 Subtotal $2,160.00 8 x 90 24 x 120 8 x 125 Subtotal $4,600. 00 5) Proposed Channel Topog (300' wide) Senior Engineer 8 x 125 Tech IV 8 x 90 2 Man Crew 24 x 120 Subtotal $4,600.00 900 3,000 75 720 9,240 360 1,800 720 2,880 1,000 1,000 720 2,880 EXHIBIT 2 Mingo Road October 2014 6) Office Processing Items 1-6 a Research Senior Engineer 16 X 125 2,000 Registered Surveyor 16 X 125 2,000 Registered Engineer 24 X 100 2,400 Tech fV 84 X 90 7,560 Tech 111 77 X 75 5,775 Subtotal $19,735.00 TOTAL DESIGN SURVEYING $45,030.00 11. Surveying for 1','EMA Hydraulics, Existiri ! C'recli, FFElevation offxisfinty Ffiiisli.Floors of 16 ljo runes , Creek crossssections istilms, brid, es , and cross sections of 2 existigg In 1) Existing Conditions Senior Hydrologist 8 X 125 1,000 Tech IV 8 X 90 720 3 Man Survey Crew 100 X 140 14,000 Subtotal $15,720-00 2) Processing - Office Work Senior Engineer 8 X 125 1,000 Senior Hydrologist 8 X 125 1,000 Tech IV 24 X 90 2,160 Tech 111 24 X 75 1,800 Subtotal $5,960-00 TOTAL FEKA $21,680.00 III. USACE 404 Permitting Senior Engineer Senior Biologist Tech N EXHIBIT 2 Mingo Road October 2014 16 x 125 2,000 153 x 125 19,125 24 x 90 2,160 Subtotal $23,285.00 IV. Hydraulics, Hydrologic Analysis, CLOMR, LOMR 1) Data Gathering Senior Hydrologist 13 x 125 1,625 Tech N 8 x 90 720 2) Existing Hydrology Senior Hydrologist Senior Engineer Tech N Registered Engineer 3) Revised Existing Hydraulics Subtotal $2,345.00 100 x 125 12,500 16 x 125 2,000 40 x 90 3,600 17 x 100 1,700 Senior Hydrologist 150 Senior Engineer 16 Registered Engineer 40 Tech N 80 Tech N 27 Subtotal $19,800.00 X 125 18,750 X 125 2,000 X 100 4,000 X 90 7,200 X 75 2,025 Subtotal $33,975.00 EXHIBIT 2 Mingo Road October 2014 4) Proposed Hydraulics - CLOMR Revised Discharges Senior Hydrologist 10 x 125 1,250 Senior Engineer 80 x 125 10,000 Registered Engineer 20 x 100 2,000 Tech N 60 x 90 5,400 Tech III 20 x 75 1,500 Clerical 40 x 35 1,400 5) Proposed Channel Senior Engineer Senior Hydrologist Tech N Clerical 2 Man Survey Crew Subtotal $21,550.00 Topog (300' wide) 4 40 35 10 30 x 125 500 x 125 5,000 x 90 3,150 x 35 350 x 120 3,600 Subtotal $12,600.00 TOTAL FEMA, HYDRAULICS $90,270.00 V. Geotechnical Analysis for Design Subtotal $16,836.00 EXHIBIT 2 Mingo Road October 2014 VI. Right of Wa 1) Preparation of R/W Maps, Parcel Maps, Descriptions, up to 6 parcels Registered Surveyor 8 x 125 1,000 Senior Engineer 8 x 125 1,000 Tech IV 48 x 90 4,320 Clerical 4 x 35 140 Subtotal $6,460.00 2) Pinning 2 Man Survey Crew 8 x 120 960 Tech IV 4 x 90 360 Registered Surveyor 2 x 125 250 Subtotal $1,570.00 TOTAL RIGHT OF WAY $8,030.00 TOTAL ADDITIONAL SERVICES $205,131.00 Reimbursable Expenses NCTCOG Contour Maps 2,565 H & H DATA from FEMA 500 Filling Fees - MISC 4,400 Printing - Misc 6,000 TOTAL REIMBURSABLES $13,465.00 EXHIBIT 2 Exhibit 2 - Attachment B ESTIMATED SHEET TOTALS - CITY PORTION Subtotal Number of Sheets = 87 Cross - Section Plans Road 13 Channel 15 Subtotal Number of Sheets = 28 Total Number of Sheets = 115 Mingo Road Sheet Description Number ofWa erts Cover Sheet 1 Notes Sheet 1 Quantity Sheets 1 Project Layout 3 Typical Sections 1 Traffic Control 1 Paving 3 Bridge 12 Bridge Details 24 Drainage Map 1 Runoff, Inlet, Storm 1 Culvert 2 Channel Grading 2 RIP -RAP 1 Street Lights 2 Pavement Markings & Signage 2 Details 25 Erosion Control 4 Subtotal Number of Sheets = 87 Cross - Section Plans Road 13 Channel 15 Subtotal Number of Sheets = 28 Total Number of Sheets = 115 EXHIBIT 2 Exhibit 2 - Attachment B Right -Of -Way Strip Maps City Right -Of -Way Strip Maps Mingo Road Sheet Description Number of Sheets Cover Sheet Parcel Summary Right -Of -Way Map Sheets Subtotal Number of Sheets = 5 Large Parcel Exhibits Total Number of Sheets for All Plan Sets = 126 N j ww ■ tO i to i �l U c� 0 0 c- U c 0 crs N c� L O L EXHIBIT 2 QO/ C'/" EXHIBIT 2 Exhibit Attachment D Mingo Road @ Cooper Creek Estimate of Construction Costs August 26, 2014 ",L "01i ton ar ty v RJ utt i.tni ptac it l Ca t,! _g y arEnz Ri ht of W 12 $ 2 Prei 1 6�i ht of W�� _ .� mm.m � 7 800.00 ,$... $ . 36,000.00 4,600.00 Excavation —�,. __�... 50 3 C.Y $ .. 8.00 $ _... 402,400.00 Embankment _ 700 43...� 55 _ COY. $ m 3.50 5 :Y6dtlll Backfill _IT 300. 00 mm —.__ _$153 600.00 0 . Block S ddi��c B_ ck Sodding 00 �._. S.Y, $ 2.50 ._ $ _ .._ 37 500.00 ,.9 eedio�c` 25000 S.Y. $ 1.50 $ 37 500.00 e Slur ay TON $ _160._0..___0,__$ _57- 600.00 0 „ Lime e Treatment 12" 800 S.Y. $ 50 $ 26 400.00 on_ Crete Pavement 12" �._eml 400 S.Y $ �5 y 58.75 $ 199,750.00 12.... 2 A CP Over 7 "" ACP Tem Pvmnt _ _ 1 135 .._. S.Y. $ 45.00 $ ._.� u 51 075.00 13 Concrete Street Header ......._ mm 68 L. F, � _ ._�. _..15.00 $ 1,020.00_ Traffic Handlj u7ra w X36' � � IVIO $ 4,5 00.00mm $ 54,000.00 15 Badge b +� 120'j& _... 4,3121 $ 324 000.00 Concrete 1 60 mm C.Y. W $ 350.00 $ 17 24 " Rip-r �� Rip -rap 730 C _Y'_ $ 90.00 $ 65 700.00 18 Traffic Rail 320 L. F, $ 80.0. 00 $ 25,600.00 19 Sacp_ 1 L.S. $ 5,000.00 $ 5,000.00 Control SWPPP 1 L.S. $ 50,000 00 $ 50,000.00 21a�ion �rost��l Im rovement SNr r� �.._ ..� 2 EA. $ 750.0. 0 $ 1,500.00 22 Metal Beam Guard Fence 16.50 $�5 _ 775 5.00 0 23 Guardrail Terminal 4 EA. $ 1 500.00 $ 6,000.00 241 c r t Lwlhts µ .. �1 L.S. $ 50,000.00 $ _A5 50 000.00 25 Pavement ..� Markings _.... _ _..... 1 L.S. L.S. $ 15 0 15,000.00 26 Remove Existing Culverts � _.._. 1 L.S. $ _00.00 2,500.00 $ 2,500.00 " 27 Remove Existin ga 3 200 S.Y, $ 6.00 $ 19,200.00 SUB -TOTAL $ 1,712,817.50 No Hydraulics and Hydrology has been done at the time of this estimate by 10% Contingency $ 171,281.75 Graham Associates, inc for the bridge size and roadway elevations. TOTAL $ 1,884,099.25 Since Graham Associates, Inc. has no control over the costs of labor, materials or equipment, or over contractor's methods of determining prices, or over competitive bidding or market conditions, this opinion of probable cost is made on the basis of our professional experience and represents our best judgment as a firm familiar with the construction industry. We cannot guarantee that proposals, bids or the project costs will not vary from the opinion of probable cost prepared by Graham Associates. EXHIBIT 2 ATTACHMENT E SCOPE OF SERVICES, DELIVERABLES AND RESPONSIBILITIES OF OWNER MINGO ROAD AT COOPER CREEK IMPROVEMENTS FOR THE CITY OF DENTON G"'ENEY",L: "I'lie City of'[)ctitoji Mingo Road at Cooper Creek Improvements Project (the Project) will irickide preparation ol'Cousirtictioji plaris and bid documents, opinions of probable construction costs, i (fell ti fica tion of right-of-way reqLdreniews and necessary ROW acquisitions, Owner utility relocation determination, franchise utility relocation coordination, permitting and construction phase services. ARTICLE I BASIC SERVICES: GAI shall render the following professional services in connection with the development of the Project: A. Conceptual Design Attend a kick-off niecting with the Owner to discuss the various aspects of the project including planning atid design criteria, work program and schedule, procedures of coninjunication, and assignments of personnel. Obtain from the Owner and franchise utility providers, and all available record drawings, planning reports, traffic counts, zoning ordinances, and other data that may be pertinent in considering the development of the preliminary alignments and the final design of the proposed improvements. Determine from a field reconnaissance of the project area the general layout of the land for the improvements including location of existing above ground utilities and drainage structures. 4. Develop a schematic layout. Submit four (4) copies of the schematic layout to the Owner for review. 5. Attend meeting with Owner to discuss potential utility conflicts and the proposed schematic plan. GAI will meet with the Owner's Project Manager and Engineering staff first and utility staff later if necessary. 6. Attend a meeting with the Owner to discuss the alignment alternatives and recommendations. 7. UP011 Owner approval of alignment and the schematic design (JAI will develop a 30% constructioiI plan set with paving ptarl/profile sheets, intersection hly0l.lts, right- of-way sheets, clraiwtge area niaps, culvert layouts, and hydraulic computation sheets for Mingo Road. 8. Prepare bridge layouts for Mingo Road. The plans shall be in accordance with the City's standards and requirements. Submit and coordinate during the review process. EXHIBIT 2 B. Preliminary Design (60 %) - Upon review of the 30% plans by the Owner, GAI will prepare preliminary construction plans as follows: 1. Prepare preliminary paving plan and profile sheets showing curb lines, driveways, elevations at all points of vertical intersection and point of intersections in the paving plan; typical sections; cross sections; high and low points, vertical curve information, and pertinent AASHTO calculations. 2. Prepare a Pavement Design Report documenting the existing soil conditions and providing pavement design recommendations based on (at a minimum) a 40 -year design life, 10% truck loading and traffic volumes as agreed upon with the Owner. 3. Prepare preliminary drainage sheets including drainage area maps, plan and profiles, and hydraulic computations. 4. Initiate coordination of utility relocations with utility owners, and prepare preliminary design of relocations of affected City water and sewer lines. GAI shall provide the design for the relocation of conflicting water and wastewater utilities if required and an additional services agreement is approved. 5. Hydraulic Design of the Culverts and /or bridge. a) 60% Design Submittal: Update hydraulic design of culverts or bridges as necessary to reflect roadway design and to address Owner comments. (i) Update hydraulic models of culverts or bridges as necessary to reflect 60% roadway design. (ii) Preparation of Bridge Scour Analyses for each of the creek crossings. (iii) Update the following sheets as necessary for 60% submittal: (1) Drainage Area Maps (2) Hydraulic Computations (3) Culvert or Bridge Layouts Prepare plan/profile and construction details for retaining walls and necessary shoring design. 7. Prepare Construction Phasing Plan including pavement phasing, transition segments, and construction detour plans. Develop construction phasing typical cross sections at key locations. Prepare traffic control plans based on the construction phasing in accordance with AASHTO and the City of Denton. 9. Prepare a preliminary estimate of probable construction cost and submit with four (4) sets of plans for review. 10. Meet with the Owner to discuss the preliminary design. GAI assumes that we will meet with the Owner three (3) times during the preliminary design phase. EXHIBIT 2 11. Submit preliminary plans to utility companies for review and comment. Attend a preliminary coordination meeting with the franchise utility companies. 12. GAI will attend a coordination meeting with the railroad to coordinate plan approval and permits for the project. C. Final Design - Following Owner approval of preliminary plans, GAI shall prepare final plans with the following additional tasks: Prepare final construction drawings for paving and drainage, and bridge or culverts as required. 2. This includes the final hydraulic design of culverts or bridges including scour analyses for the proposed culverts or bridges as necessary, and preparation of plans, specifications, and estimates. a) Final Design Submittal W Provide final hydraulic models to reflect 90% roadway design. (ii) Update the following sheets as necessary for 90% submittal: (1) Drainage Area Maps (2) Final Hydraulic Computations (3) Final Culvert or Bridge Layouts and Plans (4) Detail Sheets (special and standard details) (5) Notes (6) Final Grading Layouts (7) Quantities for Bid Proposal (8) Technical Specifications for Culvert Construction Prepare final technical specifications and bid documents for the project, including bid proposal forms (project quantities) of the improvements to be constructed. This Scope of Services assumes that the project will be prepared using standard bid documents provided by GAI. 4. Provide quality control by independent review of plans and specifications by Senior Engineer, not on the design team. Prepare a final opinion of probable construction cost based on recent project unit bid prices. Furnish four (4) sets of drawings for review by the Owner at the 60% and 90% design stages, and meet with the Owner to review and discuss the plans. The review meetings will be conducted to address review comments and to take action on items to produce the final construction documents. GAI assumes that we will meet with the Owner three (3) times during each part of the final design phase (60% and 90 %). D. Bidding and Construction Administration Phase — Assist Owner in securing bids. Issue a Notice to Bidders to prospective contractors in GAI's database of prospective bidders, EXHIBIT 2 and to selected plan rooms. Provide a copy of the Notice to Bidders for Owner to use in notifying construction news publications and publishing appropriate legal notice. The cost for publications shall be paid by the Owner. GAI will prepare two (2) separate bid packages for the project, with the following to be provided for each bid package. 1. Print thirty (3 0) sets of 11" x 17" Plans and Bid Documents and distribute to selected plan rooms, and to prospective bidders that respond to the Notice to Bidders. 2. Assist Owner by responding to questions and interpreting bid documents. Prepare and issue addenda to the bid documents to plan holders if necessary. 3. Attend one pre -bid meeting to answer questions related to the bid documents. 4. Assist Owner in the opening, tabulating, and analyzing the bids received. Review the qualification information provided by the apparent low bidder. Recommend award of contract or other actions as appropriate to be taken by the Owner. 5. Assist Owner in the preparation of Construction Contract Documents. Provide ten (10) sets of Construction Contract Documents which include information from the apparent low bidder's bid documents, legal documents, and addenda bound in the documents for execution by the Owner and construction contractor. Distribute five (5) copies of these documents to the contractor with a notice of award that includes directions for the execution of these documents by the construction contractor. Provide Owner with the remaining five (5) copies of these documents for use during construction. Additional sets of documents can be provided as an additional service. 6. Furnish contractor copies of the drawings and specifications for construction pursuant to the General Conditions of the Construction Contract. 7. Attend one (1) pre- construction meeting per bid project to discuss the project schedule for construction. 8. GAI design team staff will make (12) visits to the site to observe the progress and the quality of work and to attempt to determine in general if the work is proceeding in accordance with the construction contract documents. In this effort GAI will endeavor to protect the Owner against defects and deficiencies in the work of Contractor and will report any observed deficiencies to the Owner. 9. Review Contractor shop drawings and other project related submittals. Notify the Contractor of non - conforming work observed during site visits. Review quality related documents provided by the Contractor such as test reports, equipment installation reports or other documentation required by the construction contract documents. 10. Interpret the drawings and specifications for the Owner and Contractor. Investigations, analyses, and studies requested by the Contractor and approved by the Owner, for substitutions of equipment and /or materials or deviations from the drawings and specifications are an additional service. EXHIBIT 2 11. Prepare documentation for contract modifications required to implement modifications in the design of the project. Receive and evaluate notices of Contractor claims and make recommendations to the Owner on the merit and value of the claim on the basis of information submitted by the Contractor or available in project documentation. 12. Revise the construction drawings in accordance with ilic inlorauaaatioaa furnished by Contractor reflecting changes in the project made during c onsta LIC6011. One (l) set of. mylar reproducible prints of "Record Drawings" and electronic files shall be provided by GAI to the Owner for each set of constraaa:tioat drauwhigs. ARTICLE II ADDITIONAL SERVICES (DESIGN PHASE): A. Design Surveying — Surveying for FEMA - Hydraulics 1. Establish horizontal and vertical control for the project from existing control monuments. Establish adequate control points and benchmarks for construction of the project. Cross -tie all survey control to City of Denton benchmarks. 2. Provide a topographic survey of the project. The topographic survey shall include Mingo Road at: Cooper Creek. The survey corridor shall be 200' wide, extending 100' on each side of t:lae proposed roadway centerline or to 1,400' the foul zone of the l.ialaon Pacific Railroad, The survey shall consist of roadway cross sections taken at 50' intervals, locating all existing :ieatuu •es such aas water valves (includiaig trap of nut elevation), curb & gutter, asphalt„ driveways, culverts, headwalls, mailboxes, geotechnical boring locations, sanitary and storaaia sewer rnaaou:holes (inelracling iauvert elevations with flowlines, sizes and rnater•ia:l types), trees with 6" or greaate;r diaaniete'r at 4' height, tops and toes of slopes, visible utilities, utilities marked by others, power poles, telephone risers, and all other visible features. 3. Provide. additional topographic surveying at the creels crossing for hydraulic modelig. The limits of the survey will extend upstream and downstream from the existing crossings to sufficiently design the culverts or bridges. Trees will not be surveyed in these areas. B. USACE 404 Permitting Perform Section 404 Jurisdictional Determination based on USACE guidelines. 2. Work with USACE to resolve impacts and potential mitigation. 3. Prepare 404 Permit Application and submit to USACE 4. Coordinate with USACE through the permit process. 5 EXHIBIT 2 C. Additional Services Hydraulics, Hydrological Analysis, FEMA CLOMR & LOMR 1. DATA GATHERING a) Obtain H & H data from FEMA b) Establish HECRAS models and HEC2 models on our computer (One of the trib. uses old HEC2) c) Obtain all NCTCOG topo sheets for Cooper watershed (78 panels) 2. EXISTING HYDROLOGY a) Determine elevation / storage / Q relationships for Ex. Detention Basins (Either from construction plans or COG contours) (Assume only 3 basins w/ simple outlets) (Assuming not surveying the outlets of the existing drainage basins) b) Re- define watershed sub basins & draw sub basin map (Using topo maps from COG) (Using storm sewer data/maps from City) (Using a pattern similar to FEMA's) c) Cale. weighted hydrologic soil group for each new sub basin d) Cale. weighted existing land use for each new sub basin e) Cale. CN number for each new sub basin f) Cale. lag times (Tc) for sub basins g) Cale. stream storage /discharge relationships for routing (Using FEMA hydraulic models) h) Create a new existing condition HEC1 model and run (Using rainfall duration / frequency from iSWMM) (10 -, 50 -, 100 -, 500 -year storms for FEMA) i) Compare new Qs to FEMA effective, previous FEMA, & others (10 -, 50 -, 100 -, 500 -year storms for FEMA) j) Investigate discharge sensitivity to changes in storage upstream of RR 3. REVISED EXISTING HYDRAULICS a) Survey cross sections ( -10) near Mingo Rd. (including Rd. & RR) b) Create new hydraulic work map rising COG topo as base map c) Add FEMA effective cross sections, floodplain & floodway to work map d) Create revised existing cond. HECRAS model for all of Cooper Cr. (Using new Qs and sections) (Correcting the effective sections) e) Create new HECRAS floodway model f) Based on above, plot revised existing floodplains on a hydraulic workmap g) Plot new revised existing floodways on a hydraulic workmap h) Plot new rev. existing stream profile w/ graphics similar to FEMA's 4. PROPOSED HYDRAULICS a) Analyzes RR's existing bridge b) Design Proposed Mingo Rd. culvert & model c) Plot proposed floodplains on a hydraulic workmap d) Plot proposed floodways on a hydraulic workmap e) Plot proposed stream profile w/ graphics similar to FEMA's f) Write a FEMA CLOMR report (Including changes in discharge & water surface elev.) IN EXHIBIT 2 (Entire length of studied stream + the 2 studied tributaries) (Including prelim. prop. construction plans for Mingo Rd.) g) Convert our Hydrologic maps to FEMA acceptable format h) Convert our Hydraulic work maps to FEMA acceptable format 5. PREPARE LOMR POST CONSTRUCTION D. Geotechnical Engineering and Pavement Design 1. FIELD EXPLORATION a) Bridge Borings: Drill 2 borings to depths of approximately 75 feet for foundation bearing, assuming drilled shafts will support the 120 ft. bridge. One boring will be drilled for each end of the proposed bridge. (Estimate 150 linear feet of drilling). b) 11avcrnent Borings: Drill 3 borings lo depths of aliproxi:inately 15 fect. One boring will be (frilled, between the proposed bridge and l.,00p 298, Two borings will be drilled west of the west end of the proposed bridge ire, the section of proposed roadway improvements, (E.sthnate 45 linear feet of drilling). c) Borrow Area Borings: Drill 3 borings to depths of 15 11T't for the proposed borrow site. (Estimate 45 linear feet of drilling) d) Obtain soil saniples rr:nd per•:lorol °1 exas Cone Penetrometer (TCP) Test e) Observe for grourtclwrtter se(q)age during drilling and record level. f) Baci lilt borchorles with ctttt:ings upon co.nipletion (not grouted). g) C.. oor(Jinate the clearruice. of trrtdergrotrnd utility locations in accordance with the 1 "errs 811 One Call requirement and the City of Denton Utilities. h) Coordinate with the local municipality while drilling on or adjacent to public roads. 2. LABORATORY TESTING Selected laboratory testing will be conducted on samples that are considered to be reasonably representative of the materials obtained from the field exploration. The tests will evaluate and classify the soils, identify subsurface site characteristics, and provide data for analysis. The tests include: a) Soil classification tests including Atterberg limits and percent passing #200 sieve tests b) Unit dry weight and moisture content tests c) Unconfined Compressive Strength tests d) Soluble Sulfate tests (subgrade soils upper 4 feet) e) Soil- lime -pH Series tests 3. ENGINEERING ANALYSIS AND REPORT An engineering analysis and evaluation of the field and laboratory data will be performed for the project, based on available project concepts. Information to be provided as follows:. a) Plan of borings illustrating the approximate location of each boring and scale to which the drawing is made b) A log of each boring indicating the boring number, location (northing, easting and elevation as provided by Graham Associates, Inc.), depth of strata, soil description, field 7 EXHIBIT 2 penetration tests including Texas Cone Penetrometer (TCP) and /or Standard Penetration tests (SPT's), laboratory tests, and groundwater information c) Description of the field exploration and laboratory testing program d) Laboratory test results and analysis of results e) Discussion of subsurface soil and groundwater conditions f) Discussion of the borrow soils and there suitability of use as fill along the existing roadway g) Recommendations for the bridge foundation type, depth, allowable loading, side shear values for shafts, and the need for casing of drilled piers during construction h) Recommendations for roadway fill material including soil type, compaction and moisture content requirements, placement and testing during construction i) Provide pavement subgrade design and recommendations j) Provide design and recommendations for concrete and asphalt pavement k) Four (4) copies of the geotechnical engineering report will be provided to the design team along with a PDF version E. Right of Way and Pinning 1. Provide Right of Way and Easement Parcel descriptions 2. Provide Parcel Maps for each Parcel for Right of Way and Easements 3. Prepare Right of Way Map 4. Pin each Right of Way Parcel 5. The Right of Way cost is based on 6 Parcels ARTICLE III EXTRA SERVICES: Extra Services to be performed by GAI, if specifically authorized in writing by Owner, which are not included in the above- described Basic and Additional Services, are described as follows: A. Phase II Environmental Site Assessment services in accordance with A_STM standards to identify and investigate the nature and extent of potential environmental contamination. B. Tree survey to comply with City of Denton tree protection ordinance. C. Field layouts or the furnishing of construction line and grade surveys. D. Legal services for eminent domain hearings. E. Historical structure survey for any structure that is within the proposal right -of -way that is 50+ years old will be considered an additional service. F. If buried features or structures are located, it may be necessary to conduct formal National Register of Historic Places testing to satisfy the THC. The costs of in -depth NRHP testing or mitigation excavation will be considered an additional service. G. Documenting and Recording Historic Structures. EXHIBIT 2 H. GIS mapping services or assistance with these services. I. Providing additional 3D renderings or revisions to existing 3D renderings of the project design. Making revisions to drawings, specifications or other documents when such revisions are 1) not consistent with approvals or instructions previously given by Owner or 2) due to other causes not solely within the control of GAI. K. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. L. Preparing data and reports for assistance to Owner in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or adtni;nis rativc proceedings or hearings are caused by actions or negligence of GAI or one of its subconstillants, M. Assisting Owner in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) are caused by actions or negligence of GAI or one of its subconsultants. N. Assisting Owner in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) are caused by actions or negligence of °GAI or one of its subconsultants. Such services, if any, shall_ be (110-nished by CYAl on a fee basis negotiated by the respective parties outside of and in addition to this AGREEML-{NI". O. Performing investigations, studies, and analysis of work proposed by construction contractors to correct defective construction work. P. Design, contract modifications, studies or analyses required to comply with local, State, Federal or other regulatory agencies that become effective after the date of this agreement. Q. Services required to resolve bid protests or to rebid the project for any reason, unless such rebid is directly caused by actions or negligence of the engineering professional. R. Visits to the site in excess of the number of trips included in Article I for periodic site visits, coordination meetings, or contract completion activities. 9 EXHIBIT 2 S. Any services required as a result of default of the contractor(s) or the failure, for any reason, of the contractor(s) to complete the work within the contract time. T. Providing services after the completion of the construction phase not specifically listed in Article I. U. Providing basic or additional services on an accelerated time schedule. The scope of this service includes the cost for overtime wages of employees and consultants, inefficiencies in work sequence and plotting or reproduction costs directly attributable to an accelerated time schedule directed by the Owner. V. Providing services made necessary because of unforeseen, concealed, or differing site conditions or due to the presence of hazardous substances in any form. W. Providing services to review or evaluate construction contractor(s) claim(s), provided said claims are supported by causes not within the control of GAI. X. Providing value engineering studies or reviews of cost savings proposed by construction contractors after bids have been submitted. Y. Provide follow -up professional services during contractor's warranty period. ARTICLE IV TIME OF COMPLETION: GAI is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with the schedule shown as Exhibit 3 of this document. If GAI's services are delayed through no fault of GAI, GAI shall be entitled to adjust contract schedule consistent with the number of days of delay. These delays may include but are not limited to delays in Owner or regulatory reviews, delays on the flow of information to be provided to GAI, governmental approvals, etc. If the project is placed on hold by the Owner for more than six months, GAI reserves the right to negotiate additional compensation for additional services related to the delay. ARTICLE V RESPONSIBILITIES OF OWNER: Owner shall perform the following in a timely manner so as not to delay the services of GAI: A. Designate in writing a person to act as Owner's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define Owner's policies and decisions with respect to GAI's services for the Project. B. Provide all criteria and full information as to Owner's requirements for the Project, including project objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish 10 EXHIBIT 2 copies of all design and construction standards which Owner will require to be included in the plan. C. Assist GAI by placing at GAI's disposal all available information pertinent to the Project including previous reports, GIS mapping and data, and any other data relative to completion of the Project. D. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by GAI, obtain advice of other consultants as Owner deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of GAI. E. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. F. Attend and take leadership role in project progress meetings and other project related meetings and attend and moderate the public meetings. G. Give notice to GAI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of GAI's services, or any defect or nonconformance of the work of any contractor. H. Contact other departments within the City of Denton and coordinate with them to obtain record drawings of other utilities, buildings, or infrastructure as needed. 11 0 0 0 cn cn o 0 IL EXHIBIT 2 Graham Associates, Inc.: Principal $150.00 Senior Engineer $125.00 Registered Public Land Surveyor $125.00 Senior Hydrologist $125.00 Registered Engineer $100.00 Graduate Engineer $90.00 Graduate Hydrologist $95.00 Technician IV $90.00 Technician 111 $75.00 Technician 11 $60.00 Technician 1 $40.00 GPS Survey Crew $130.00 3 Man Survey Crew $140.00 2 Man Survey Crew $120.00 Clerical $35.00 CADD Station $25.00 Landtec Engineers, LLC PERSONNEL Project Geotechrlical Engineer $ 125.00 Senior Geotechnical Engineer $ 135.00 Senior Project Manager $ 150.00 Principal Engineer $ 165.00 Senior Engineering Consultant $ 195.00 Registered Professioml Land Surveyor $ 135.00 Expere , Wifiiess (Deposition and Trial) $ Reg. Rt. x 1.5 Engiiiecring Technician 1 $40.00 Engineering Technician 11 $50.00 Engineering Technician 111 $60.00 Senior Engineering Technician $65.00 Engineering Assistant/Specialist $75.00 Word Processing/Clerical $50.00 Drafting/CADD $70.00 Field Survey $ 115.00 Field Survey over 8 hrs/day $ 125.00 GPS Equipment $10.00 GPS Communications $50.00 Robotic Equipment Charge $10.00 EXHIBIT 2 Transportation (portal to portal) $ 0.65 /mile Transportation w /trailer (portal to portal) $ 0.75/mile Minimum Transportation Charge $ 50.00 /trip Support Vehicle $ 50.00 /day Per Diem $ 150.00 /day Sample /Document Shipment.$ 50.00 each Plots /Copies $ 50.00 /first plot; w /continuous bbl sampler $ 5.00 after first plot Copies $ 0.10 /page DRILLING AND SAMPLING Drilling and Intermittent Sampling in Soil $ 16.00 /foot Drilling and Continuous Sampling in Soil $ 24.00 /foot Drilling in Rock (Auger - no sampling) $ 15.00 /foot Core Drilling in Shale /Sandstone /Moderately Hard Limestone $ 25.00 /foot Core Drilling in Very Hard Rock $ 30.00 /foot Field Penetration Tests, split spoon or TxDOT cone $ 35.00 /each DRILLING AND SAMPLING CONT'D Drilling Through Concrete $ 100.00 /hole Mobilization of Rig (Local) $ 300.00 /each Minimum Drilling fee $ 1250.00 /each Plug Bore Hole with Bentonite $ 7.50 /foot Hollow Stem Auger Drilling (3.25 I.D.) $ 250.00 /test w /continuous bbl sampler $ 27.00 /foot Drill Rig Standby Time $ 185.00 /hour SOIL Atterberg Limits (liquid and plastic limits), ASTM D4318 $ 60.00 /test Percent Passing No. 200 Sieve, ASTM D 1140 $ 50.00 /test Standard Proctor, ASTM D 698 $ 140.00 /test Modified Proctor, ASTM D 1557 $ 175.00 /test TEX -113E $ 225.00 /test Processing Materials greater than No. 4 $ 65.00 /test Sieve Analysis, ASTM D422 $ 70.00 /test Lime / Atterberg Limits Series, 4 points $ 250.00 /test Soluble Sulfate, TxDOT 145E $ 100.00 /test Moisture Content, ASTM D433 $ 15.00 /test Moisture Content and Unit Dry Weight $ 25.00 /test Hydraulic Conductivity, ASTM 5084 $ 310.00 /test EXHIBIT 2 Hydraulic Conductivity, COE $ 310.00 /test Hydrometer Analysis. $ 115.00 /test Specific Gravity $ 60.00 /test Unconfined Compressive Strength $ 45.00 /test Unconfined Compressive Strength (core) $ 60.00 /test Absorption - Pressure Swell $ 100.00 /test Free Swell $ 75.00 /test Bar Linear Shrinkage $ 20.00 /test California Bearing Ratio (ASTM 1883) $ 225.00 /point Consolidation $ 450.00 /test Triaxial Shear —1.4 -inch, 2.0 -inch diameter specimens (larger diameter specimens quoted upon request) a. Unconsolidated Undrained: - multiple specimen, 3 specimens minimum $ 85.00 /spec - single specimen, 3 points minimum $ 85.00 /point b. Consolidated Undrained — with pore pressure measurements: - multiple specimen, 3 specimens $ 425.00 /spec - single specimen, 3 points minimum $ 425.00 /point c. Consolidated Drained: - multiple specimen, 3 specimens minimum $ 450.00 /spec - single specimen, 3 points minimum $ 450.00 /point Direct Shear — 2.5 -inch diameter specimen - Q -Test, 3 points minim-ain $ 175.00 /point - S -Test, 3 points minimum $ 250.00 /point Remolding samples $ 60.00 /each City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -132, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Landscape Maintenance for select City of Denton roadway rights -of -way; and providing an effective date (RFP 5713 - awarded to VMC Landscape Services in the three (3) year not -to- exceed amount of $375,000). RFP INFORMATION This Request for Proposal is for an annual contract for services to be performed under the City's pilot program for improved upkeep of public rights -of -way on specific City of Denton roadways. The City Council approved $125,000 in funding for Fiscal Year 2014 -2015 to develop and implement a pilot project to upgrade the scope and level of maintenance on specific roadways in Denton. Eight roadways (Teasley Lane, McKinney Street, University Drive, Country Club Road, Hickory Creek Road, Locust Street, Elm Street, Mingo Road) were selected for inclusion in the pilot project. The maintenance services to be provided include but are not limited to: mowing, weed eating, tree care, and the removal of trash, debris, and illegal signage. The pilot project results will be evaluated to determine if increased funding for continued, upgraded right -of -way maintenance is desired for these and additional corridors and thoroughfares in Fiscal Year 2015 -2016. The contract will be managed by the Community Improvement Services Division. Requests for Proposals were sent to 52 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Three (3) proposals meeting specifications were received. The proposals were evaluated based upon published criteria including compliance with specifications, indicators of probable performance, and price. A Best and Final Offer (BAFO) was conducted for two reasons. It became evident after the initial proposals were received that the City's specified dimension for each right -of -way location was unclear, which led to a pricing disparity. The dimensions were updated with a better representation of the areas, which was obtained through a pictometery analysis. During the evaluation period, the City's negotiations with Union Pacific Railroad for the City's access to maintain areas near their railways, exposed Union Pacific Railroad's higher standard insurance coverage limits than the City's specified limits. These two factors were communicated to all three respondents and were considered when they submitted their BAFO responses. The evaluation/ranking sheet (Exhibit 1) shows the significant reduction in each respondent's pricing as a result of the BAFO. The highest ranked respondent, VMC Landscape Services, reduced their pricing for the cyclical services which are Items 1 -18 (routine mowing and clean -up services) by eleven percent, resulting in a savings City of Denton Page 1 of 3 Printed on 2/12/2015 File M ID 15 -132, Version: 1 of $10,178. VMC Landscape Services is one of the City's current contractors for mowing services for various park land and roadway medians. They have performed satisfactory work for the Parks and Recreation Department. VMC Landscape Services offered a significant cost savings when compared to the other two respondents, therefore staff is recommending VMC Landscape Services as the best value for the City of Denton. The majority of this contract's costs will be used for cyclical services, i.e. weekly debris and litter removal and bi- weekly mowing services during the growing season. The cost for these services will be $85,832. The remaining $39,168 will be used for various additional services including broadleaf herbicide application in troublesome overgrown vegetation areas, minimal tree removal, pre- approved by the City's Forester, and removal of bulky dumped items. Staff recommends award of this RFP to the highest ranked vendor meeting specification, VMC Landscape Services. RECOMMENDATION Approve the award of a contract for landscape maintenance of select roadway rights -of -way to VMC Landscape Services in the three (3) year not -to- exceed amount of $375,000. This amount is based upon the initial $125,000 pilot project amount being carried over for an additional two (2) years. PRINCIPAL PLACE OF BUSINESS VMC Landscape Services Dallas, Texas ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract which automatically renews for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The maintenance services will be funded from the Community Improvement Services Division operating account 4330001.7879. Payment will be made to the vendor as services are rendered. EXHIBITS Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 2/12/2015 File M ID 15 -132, Version: 1 For information concerning this acquisition, contact: Lancine Bentley at 349 -7489. City of Denton Page 3 of 3 Printed on 2/12/2015 h rvvm d by I cx:ls i''I EIIIIIIIIIIIIIIIIIIIIIII EIIIIIIIIIIIIIIIIIIIIIII EIIIIIIIIIIIIIIIIIIIIIII IMIIIIIIIIIIIIIIIIIIIIII .............. .......... ......... ...... ............. . . . . . . ..... EIIIIIIIIIIIIIIIIIII I EXHIBIT 2 ORDINANCE NO. 2015- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR LANDSCAPE MAINTENANCE FOR SELECT CITY OF DENTON ROADWAY RIGHTS -OF -WAY; AND PROVIDING AN EFFECTIVE DATE (RFP 5713 - AWARDED TO VMC LANDSCAPE SERVICES IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $375,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of landscape right -of -way maintenance 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 5713 VMC Landscape Services $375,000 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 5713 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 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND VMC LANDSCAPE SERVICES (RFP FILE # 5713) THIS CONTRACT is made and entered into this 17`h day of February A.D., 2015, by and between VMC LANDSCAPE SERVICES, LP. , whose address is 2433 Merrell Road, Dallas, Texas 75229, 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 # 5713 — Landscape Maintenance of Select Roadway Right-of-Ways, 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) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5713 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 IN File # 5713 CONTRACTOR BY: AUTHORIZED SIGNATURE Irate: 2/09/2015 Name; Bruce verdick Title:: VP Texas Operations 972 - 445 -5654 PHONE NUMBER bverdick@vmclandscape.com EMAIL ADDRESS CITY OF DENTON, TEXAS BY: _ GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $125,000 per one -year term and $375,000 for the three (3) one -year terms of the contract. Unit pricing shall be per Exhibit F attached. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Contractor 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 on the U.S Department of Labor, Bureau of Labor Statistics, Non Seasonally Adjusted Employment Cost Index (ECI) for Total compensation for Private industry workers in Service - providing; natural resources, construction, and maintenance Index (CIU201S000400000I). 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 +/-I%, 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. If no request is made, then it will be assumed that the bid price will be in effect. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days, after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and /or cancellation. The request can be sent by e -mail to: purchasinagcityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. File 4 5713 EXHIBIT 3 Cooperative PurchasinE/Piimyback Option This contract will be available for use by all governmental entities, providing there is no conflict with any applicable statutes, rules, policies, or procedures. The governmental entities will have the option to use the pricing as agreed to within the resulting contract. Governmental entities will issue their internal purchase orders directly to the contractor(s), however, shall reference and cite the City of Denton contract number (Solicitation number) within the purchase order document. After award, the contractor agrees to pay a service fee in the amount of 0.25% of the dollar amount of all issued purchase orders generated from use of this contract. The contractor further agrees to remit the service fee by check on a quarterly basis for the previous quarter spent through this contract, to Julia Klinck, Contract Administration Supervisor, at 901B Texas Street, Denton, TX 76209, on or by the fifteen day of each month, following the end of the quarter. The Contractor shall also provided quarterly sales reports from the contract awards and Purchase Orders issued from the Contract, for the purpose of billing and collecting the service fee, and for compiling required purchasing history. This report shall be sent to purchasing_gcityofdenton.com on or by the tenth day of each month. The Contractor further agrees that the City of Denton shall have the right, upon reasonable written notice, to review the Contractor's records pertaining to purchases under this awarded contract to verify the accuracy of service fees charged to the Contractor. Contractor Standards of Performance Monthly Time Standards - Contractor shall fully understand that the City relies on the product or service of the Scope of Work to provide vital municipal services, and the availability and reliability of the equipment is of the essence. With this in mind, the Contractor shall meet the following performance standards at all times. Labor disputes, strikes, and other events, except those beyond the Contractor's control such as acts of God, shall not relieve the Contractor from meeting these standards. For service category, the Contractor must ensure the given level of service is achieved, within the designated number of working hours. Contractor shall deliver goods or services within specified delivery times for 95% of all orders. Performance Liquidated Damages The Contractor shall incur contractual payment losses, as initiated by the City for performance that falls short of specified performance standards as outlined below: Performance below contracted levels as defined in the RFP #5713 Scope of Work (services only) The Contractor shall provide to the City of Denton, detailed reports of time and services provided to the City on a monthly basis. The Contractor shall be assessed a one (1%) percent fee each month when any one of the performance standards outlined in the RFP's Scope of Work are not met in full. The Contractor shall be assessed a two (2 %) percent profit fee each month when any two (2) or more performance standards outlined in the RFP's Scope of Work are not met in full. At the end of each month, the City will review the monthly reports and determine the percentage of penalty to be assessed to the Contractor's monthly profit margin. File # 5713 EXHIBIT 3 Adding New Products or Services to the Contract After Award Following the Contract award, ADDITIONAL services or products of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to successful Contractor(s) to provide a proposal on the additional services and shall submit proposals to the City of Denton as instructed. All prices are subject to negotiation with a Best and Final Offer ( "BAFO "). The City of Denton may accept or reject any or all pricing proposals, and may issue a separate solicitation for the services /products after rejecting some or all of the proposals. The commodities and services covered under this provision shall conform to the statement of work, specifications, and requirements as outlined in the request. Contract changes shall be made in accordance with Local Government Code 252.048. File # 5713 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5713 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5713 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5713 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5713 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of I% or greater. If an overpayment of I% 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. 18. 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 File # 5713 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5713 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5713 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5713 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5713 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 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 File # 5713 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5713 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5713 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5713 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. The Contractor shall not sell, assign, transfer or convey this contract in whole, or File # 5713 EXHIBIT 3 part, without the prior written consent of the Purchasing Manager. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5713 EXHIBIT 3 parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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, File # 5713 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. File # 5713 EXHIBIT 3 D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd /contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and File # 5713 EXHIBIT 3 suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5713 EXHIBIT 3 Exhibit D 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. File # 5713 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 and $2,000,000.00 in aggregate 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, File 4 5713 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $1,000,000 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 $500,000 for each accident, $500,000 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,. File # 5713 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5713 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. E. The contractor shall obtain from each person providing services on a project, File # 5713 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5713 EXHIBIT 3 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. File # 5713 EXHIBIT 3 Exhibit E F _ . ... — _.._ ._.— w _ - - -- ...._....... . CONFLICT O INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other j)erson doin business with local governmental entity� This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 by Section 176.001(1 -a) with n local governmental entity and the person meets requirements under Section 176.006(x). 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 p ... - -- �. ...�.._ —.. �........�. _�.�. �.... person who has a business relationship with local governmental entity.. Check this m...._... - . .......... box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire wlth the appropriate filing authority not later than the 71h business day after the date the originally filed uestionnaire becomes incom late 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, D, C & D), must be completed for melt officer with whom the filer [ins an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code, Attach ndditionol pnges to this form CIQ as nceessnry. 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 ?? L- —t Yes No B. Is the filer of the questionnnire receiving or likely to receive taxnb[e income, other than investment income, from or at the direction of the locni government officer named in this section AND the taxable income is not received from the iocnl governmental entity? 17-- Yes E--�] No C. Is the filer of this questionnnire employed by n corporation or other business entity with respect to which the locnl government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes im No D. Describe each affiliation or business relationship. .. ..... .._ .. ..... _�w_.� ..... ..�� �� ❑k ..._. I have no Conflict of Interest to disclose. _ ..... ___ ._.... 2/9/2015 _ Signature ol'person doing business with the governmental entity Dote File 4 5713 EXHIBIT 3 EXHIBIT F Best and Final P er Respondent's Business Name Principal Place of Business (City and State) VMC Landscape Services Dallas Texas RFP 5713 Pricing Sheet for Landscape Maintenance for Select Roadway Rights -of -Way The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Services Proposal Pricing: City of Proposed schedule ITEM UOM Type of Service Requested Denton requested if can not Cost of Anticipated meet # of Cycles completion required Service Line Total schedule schedule: Per Cycle Ai a rge Per Season WEEKLY DEBRIS & LITTER REMOVAL TM4`X(WZK1nney) 'romTiRy y"R" an R..S to a v8 Yl end ° ue 1 EA (Debris and Litter Removal) ..Iml Weekly $98.14 5 34 $ 3,336.85 2 EA nfYerSr torn e " to Eaft City s (1eY ris.... and Litter Removal) Weekly $343.50 1/.5 34, $ 11,678.98 eas ey Road) from is ory ree to i y Limits 3 EA (Debris and Litter Removal) Weekly $58.89 3 1. 34 $ 2,002.11 4 EA oun ry u oa rom o son o f imi s (Debris and Litter Removal) Weekly $68.70 34 $ 2,335.80 RrEko r C`eek Road " rof om I easiey td Rive"'Fpass' ri ive° 5 EA (Debris and Litter Removal) Weekly $58.89 34 $ 2,002.11 6 EA ngo roan e o doper Lree a ris an er - Removal) Weekly $294.43 Vil 34 $ 10,010.55 7 EA FM 2164 (Locust ree rom Winclsor to Loop (Debris and Litter Removal) Weekly $80.48 1 34 $ 2,736.22 8 EA Union Pacific Rail Yard (Debris and Litter Removal) Weekly $98.14 llS 34 $ 3,336.85 9 EA us m ree rom Loop 2881635 (DeUF5 an I er Removal) Weekly $76.55 3 9 34 $ 2,602.74 TOTAL WEEKLYSERVICES: $ 40,042.22 MOWING, WEED EATING, EDGING, AND DEBRIS /LITTER r (nney rdm r lyy..-n-T.—YeT7-v-e.ue __Y,- ee Ty- 10 EA ( Mowin g, Weed Eatin g, Edging, Debris Litter Removal) - $211.99 5 18 $ 3,815.79 11 EA nrversi rom Bell to ast i y units owing, -weekly Weed Eating, Edging, Debris /Litter Removal) (March - $741.96 /,5 18 $ 13,355.26 FM 2181 eas ey oa rom c cry ree o a y mils 91—Weekly 12 EA (Mowing, Weed Eating, Edging, Debris /Litter Removal) (March - $127.19 11 18 $ 2,289.47 FM I oun ry u R65 from Hobson to City Limits B- R%eeTcy 13 EA (Mowing, Weed Eating, Edging, Debris /Litter Removal) (March - $148.39 9 .,'a 18 $ 2,671.05 Fii`c_0 i:ree Road Ieasley%Rive'rpass "°' nve—°"" F eek "y 14 EA (Mowing, Weed Eating, Edging, Debris /Litter Removal) (March - $127.19, i 18 $ 2,289.47 15 EA ngo rom e to Looper Lreek (MoOffil,' VWV668 Ming, WE 1y Edging, Debris /Litter Removal) (March - $635.96 15 18 $ 11,447.36 FM 2164 ocus ree rom in sorr C0 Coop 7913 i- ee y 16 EA (Mowing, Weed Eating, Edging, Debris /Litter Removal) (March - $173.83 4,1 18 $ 3,128.95 Union Pacific Rail 7ard owing, Weed Eating, Edging, I Bi-Weekly 17 EA Debris /Litter Removal) (March - $211.99 18 $ 3,815.79 ree l -Tr6rn Loop owing, e-e r- eef y 18 EA Eating, Edging, Debris /Litter Removal) (March - $165.35 3 ') 18 $ 2,976.31 TOTAL BI-WEEKLY SERVICES: $ 45,789.45 Total Cost $ 85,831.67 Cost of Additional Services: EXHIBIT 3 CERTIFICATE OF LIABILITY INSURANCE DATE(MM /DDlYYYY) ........_WWW ........_.. 1/11/2a1s 10/30/2014 ......... 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 pollcy(les) must be endorsed. If SUBROGATION IS WAIVED, subject tomm the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER LOCKTON COMPANIES 5847 SAN FELIPE, SUITE 320 HOUSTON TX 77057 866 - 260 -3538 Old ReDublic General Ins INSURED VMC LANDSCAPE SERVICES LP INSURER B: GreaL Americar` Insurance 1388158 TERRACARE ASSOCIATES INSURER c 2433 MERRELL RD DALLAS TX 75229 aNSUR.ER o , _ -•••• COVERAGES ..... CERTIFICATE NUMBER: 13177265 REVISION NUMBER: , > THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. .. ..... _ TYPE OF INSURA ..................- _,........ ADDL SUBR NCE POLICY NUMBER �r L C`r"E' F POG.IU" EXr� 1.. ... .. _. _ ...................._ h�i P1,"r tNiII�.I Y"r"Vif LIMITS ....... _..�... ..... _ .. A COMMERCIAL GENERAL LIABILITY y A -6CG- 977614 -04 al rQ tl I/ 5/16/2014 5/16/2015 ti I " �,Oaa O CLAIMS Lr OCCUR I��� rrlai�E dJ „IBfIWIIAbI14;;e 100000 ME':.D "✓(� P (Ar'6 t QI'V&3 r)alY'CC1Y'0 L 5 000 •17ELr2 SGJI`J6hL & VIN 1- I $ l.�Oa00 0 a ..C;kilVl. ACG Iif C'A "M I Ii TAI'I'I 1I4 S PER. - NI: I �rl ( -,A �I $ 2 000 aaa JE C r ..... D IL.O - - ----- /�I l I� � . (,Q1A11/011 > � �� $ 2 aaa 00 .... _90 Q a QTTHER $ A AUTOMOBILE LIABILITYp._ .... X A6CA977614 04 5/16/2014 5/16/2015 L ,, I ^rr4 r/ +6lwICol I °v 9` .° , 9II4I1 � $ 1.000,000 • ANY AUTO l':'9ODII...Y ft.)URY QPer Ipoisr.,n1 $ XXXXXXX ALU C}V NE��.ID E:�C II , JI P::q:1 P�IDT(J; b41lIIQ /{, ..... .,,_....,...m .............._._ C1C7V:711...Y ENIAJRY (Pei acci(ler'°I' $ .x�i�i���i�� P1)^"NI :" IIdG76UPfS 0.1C $ X x X $XXXXXXX B UMBRELLA LIAB j{ 47ccu4J Y 1' T 5/16/2014 5/16/2015 I °: CIr i OC,0 JR1as 1KJ $ 10,000,000 EXCESS LIAB C,II A1MS;- IVAfll:': .. AG,C,I +I Cx. ^,H- ...... $...7..a aaa aaa .1....x ,a�.,.....w V:II:O:I � RF I- E:::IVTION$ 10,000 $ XXXX.XXX A. WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N Y A6CW97761404 5/16/2014 16/2015 :X ' ANY PROPRIETOR /PARTNER/EXECUTIVE N J A` '8m L EACYI ACCIDI NT $ 1 oaa o00 '�° OFFICER/MEMBER EXCLUDED? (Mandatory In NH) •w•w• ----- 1;:.1 ... DISEASE . FAEWPLOYC:E •°-•-�•- -- •••••••— -••• : 1 aaa 000 If }}o�rs, tle aloe under UL',SCRIP'CION OF OPERAY IONS he.low r?.. qil Nor - rL➢%,1, 7 i'hI[ HIV,,, d, mw„ e, $,- ,,,, #,•,;yO��,�,��r,(I,( WwWWW DESCRIPTION OF OPERATIONS t LOCATIONS ! VEHICLES (Attach ACORD 101, Addltlonal Remarlo Schedule, may be attached If more space Ie requlred) W New Acquisition Effective Date: 11/1/14. RE: Bid #3978 Project: Mowing and Litter Removal CERTIFICATE HOLDER �m CANCELLAT'ION oe A l,,whrllent SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 13177965 AUTHORIZED REPRESENTATIVE City of Denton its Officials, Agents, Employees and volunteers 9018 Texas Street Denton TX 76209 —+ -- . ................. _ ACORD 25 (2014101 ) ___........._ v.._©1988 -2014 ACORD CORPORATI All rights reserved The ACORD name and logo are registered marks of ACORD EXHIBIT 3 ALL POLICIES (EXCEPT WORKERS COMPENSATION /EL) INCLUDE A BLANKET AUTOMATIC ADDITIONAL INSURED ENDORSEMENT [PROVISION] THAT CONFERS ADDITIONAL INSURED STATUS TO THE CERTIFICATE HOLDER ONLY IF THERE IS A WRITTEN CONTRACT BETWEEN THE NAMED INSURED AND THE CERTIFICATE HOLDER THAT REQUIRES THE NAMED INSURED TO NAME THE CERTIFICATE HOLDER AS AN ADDITIONAL INSURED. IN THE ABSENCE OF SUCH A CONTRACTUAL OBLIGATION ON THE PART OF THE NAMED INSURED, THE CERTIFICATE HOLDER IS NOT AN ADDITIONAL INSURED UNDER THE POLICY. ALL POLICIES INCLUDE A BLANKET AUTOMATIC WAIVER OF SUBROGATION ENDORSEMENT [PROVISION] THAT PROVIDES THIS FEATURE ONLY WHEN THERE IS A WRITTEN CONTRACT BETWEEN THE NAMED INSURED AND THE CERTIFICATE HOLDER THAT REQUIRES IT. IN THE ABSENCE OF SUCH A CONTRACTUAL OBLIGATION ON THE PART OF THE NAMED INSURED, THE WAIVER OF SUBROGATION FEATURE DOES NOT APPLY. Attachment Code: D472476 Master ID: 1388158, Certificate ID: 13177965 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -133, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 17, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the Rental of Heavy Equipment for various City of Denton departments; providing for the expenditure of funds therefor; and providing an effective date (RFP 5639- Rental of Heavy Equipment awarded to the lowest responsible bidder meeting specification for each item, in the annual estimated amount of $1,250,000 for a three (3) year not -to- exceed amount of $3,750,000). RFP INFORMATION This Request for Proposal is for the annual contract to supply the short term rental of heavy equipment to all City departments. From time to time, the City of Denton has a need for heavy equipment to supplement our fleet. The rental periods range from daily to monthly. This annual contract will allow staff quick access to equipment without delay. The annual contract leverages volume and allows for a more competitive price than incidental usage. No guarantee of any minimal usage is part of the contract and each rental will have an individual purchase order. The equipment list consists of the most commonly used sizes and types of heavy equipment. The required specifications include equivalent horsepower, weight, size, and other features as listed in the sample model or class provided in the attached tabulation sheet (Exhibit 1). Requests for Proposals were sent to 156 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Twelve (12) proposals meeting specifications were received. The proposals were evaluated based upon one month of rental plus delivery and pickup rates, as well as published criteria including delivery timeframe, compliance with specifications, and indicators of probable performance. A Best and Final Offer (BAFO) was conducted to request additional clarification on some line items. This resulted in minimal line item changes by one of the respondents but did not have any effect on the overall ranking. Staff recommends award of this RFP to the highest ranked vendor meeting specification for each line item. This will award line items of specific equipment to eleven vendors. The awarded vendor for each item is highlighted in yellow on the attached Exhibit 1- EvaluationBAFO Sheet. There was no pricing meeting specification submitted for line item numbers 1, 2, 5, 14, 36, 41, 44, 47, and 65a; therefore these items will not be awarded. After an internal analysis of price comparisons, the City of Denton will save approximately 15% in rental costs over the term of the contract. There is also additional unmeasured savings from establishing a long -term contract where pricing is stable, and the continuity of service is highly valued in the delivery of vital services to taxpayers. City of Denton Page 1 of 3 Printed on 2/12/2015 File #: ID 15 -133, Version: 1 RECOMMENDATION Approve the award of a contract with the vendor providing the lowest offer meeting specification for each item in the three (3) year not -to- exceed amount of $3,750,000. This amount is based on the purchase history for items included in RFP, but quantities will vary depending on needs as needs arise. PRINCIPAL PLACE OF BUSINESS B &R Equipment Co. Kirby -Smith Machinery, Inc Fort Worth, TX Fort Worth, TX Bane Machinery T -K -O Equipment Company Fort Worth, TX Grand Prairie, TX Landmark Equipment, Inc. Hertz Equipment Rental Corp Irving, TX Denton, TX Blue Line Rental Closner Equipment Company, Inc. McKinney, TX Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT United Rentals North America Denton, TX R.B. Everett & Company Haltom City, TX Associated Supply Co., Inc. Euless, TX This is an initial one (1) year contract which automatically renews for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION These items will be charged to the using departments as needed. EXHIBITS Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Ordinance with Exhibit A Exhibit 3: Contracts for Awarded Vendors Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Elton Brock at 349 -7133. City of Denton Page 2 of 3 Printed on 2/12/2015 File M ID 15 -133, Version: 1 City of Denton Page 3 of 3 Printed on 2/12/2015 h rvvm d by I cx:ls i''I iii�iiiit iiit iiiit iiiniii ,iiitiiitiiioiii,iiitiiii ■ iiitiiiitiiitii�it iii tiii,iiitiiitiiioiii�iiitiii� a � ���t0���t ll�t lllOt ��� t���,��Ot���t����01�����1���� v m ■nn�in.nn.m.m.m.m.m■in.m.m■ ���, II����O�����I�����������I��������tl����������� III�IIII' III' IIII' III'III1III'III'III�III1III'�I� � III ■1111 ■III ■1111■ III ■III ■III ■III ■III ■III ■III ■III, ■ III�IIII ■III�IIIIIII ■III ■III ■Illilll1111 ■III ■III � iii■iiii■ iii ■iiii■ iii ■iii�iii ■iii ■iii■iii� iii ■iii III�IIII ■III ■1111■ III ■III ■III ■III ■1111111 ■III ■1111 ■ ��������t���t����t���t���t��lt���t�l�lll�t���t���� ■ III�IIII ■III ■1111 ■III ■III ■II III II I III ■1111 �JIII,IIII■ III ■1111 ■I!I ■III ■III ■III ■1111111 ■III ■1111 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND LANDMARK EQUIPMENT, INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between LANDMARK EQUIPMENT, INC. a corporation, whose address is 1351 SOUTH LOOP 12, IRVING, TX 75060, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5639 EXHIBIT 3 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 File # 5639 CONTRACTOR BY: .rte AL. 1 "llo x 1zr"13 aO�TURE Date-, Name:w Title:' CO . , .� . w PHONE NUMBER EMAIL ADDRESS q` CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $150,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If'partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. ' D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall , not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall" endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks' relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable. required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not ,commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision, of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as'possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision whit;h 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - 1Od) 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http:// www .dol.aov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must-comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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: 1 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required, If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $600,000 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. File # 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 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. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E CONFLICT OF I __ �__ .. �. �mm... ._ �._.._. �����_...... �__ �. �.. ..................�........�. .._.NTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local gpyernmental enti This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 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 relationshipmwith local governmental entity. _ .m 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 on Inapt fit d uestiopnalre becomes incomletr or'dptecourte. 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? E] 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? Yes E-1 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. .... ... _........ _...._.... .. ...... .............. _.... �P 4 have no Conflict of Interest to disclose. ...._ 1'u �4— � .� � .. ............................... 11 Signature of person h � ng businc , with the governmental entity Date File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Landmark Equipment, Inc. Irving, TX Item uoM Product Description Make /Model offered Weekly Rental Montly Rental Delivery/Pickup Charge I SECTION A - DOZERS 1 EA Dozer, Cat D10T or eclulvalent 2 EA Dozer, Cat D9T or equa valent 3 EA Dozer, Cat DBT orequivaderat _ _...�._._.� 4 EA Dozer Cat D7T ore; q aaCvalerut 5 EA Dozer, LGP Cat D7R or equo vzalent .... .._ ......................... . .. ....... .... - 6 EA Dozer Cat D6R or eaquNadeant - -- ......... .. . ..... ...... .......... 7 EA Dozer, LGP Cat D6R or equivalent 8 EA Dozer, Cat D6K or equivalent 9 EA 'Dozer, Cat D5M or equivalent ... - -- � 10 EA Dozer Cat DSK or egtauvalont 11 .............. EA Dozer, LGP Cat D5K or equlvalaant ....................... ............................ . .. ................. . ..................... - ..._....................... .........................._..__ 12 EA Dozer, Cat D4K or equivalent ......... -... ...................... ................ ............. ....................... .. . ._... 13 EA Dozer, LGP Cat D4K or equivalent SECTION B -WHEEL LOADERS EA 'Wheel Loader,C xt 988k l or egLldvaalaral _ .... .. 15 EA lWheal Loader, Cat 980H ore ulvalexal 16 EA Wheel Loader, Cat 966K or egUva @end 17 EA 'Whad Loader, Cat 962K or equivalent 18 EA Wheal Loader, Cat 950H or equivalent 19 EA Ap eel, Loader Cat 938H or ec(uivalemt 20 EA 'Wheel Loader, Cat 930H m, equivalent 21. EA Wheel Loader, Cat 924H or equlvaient SECTION C- MOTOR GRADERS 22 EA 'Motor Gr;rader, Cat 12M or a r�uivalenl 23 _- -._ EA ...... Motor Grander Cat 140M or egreGvalerrt _ ...................... _.._... SECTION D- EXCAVATORS 24 EA Excavator, Cat 345DL or equivalent 25 EA Excavallor„ t; at 3'36DL or equivalent 26 EA Excavator„ Cat 325 or equivalent 27 EA Excavator, Cat 329E or equlvalenl w /Grappw e 28 .......... EA Excavator, Cat 324E or e�uarvalent ..............-- ...... _ ...................... �. ... .._. -. 29 EA Excavator Cat 320 gr ac uivalent �.� 30 EA Excavator, Cal 320DL or equfyalerrt wlinralapdt .............._......- -..... mmmX 31 EA mm 11 ib class, Cat 312D xoavotor, with h clrau4c breaker 1 "a;YO 32 EA Excavator, with h drauaiic breaker 3.000 (ft lb ) class, Cat 320DL 33 EA hxcavalor, with hydrauiic breaker 5,000 (lt Ib) class, Cat 320DL 34 EA IExcavator, Cal 320 with zero tallslndn or equivalent, Cat 320D SECTION E- SOIL SCREENERS ...... 35 EA 9W Screerner, TeeeydFinNey 7.... -... -r .....e - -- 70 or onquivalerrl 3l8' - 1/4 screen 36 EA SDII Scraensr„ TwexlFinely 790 or equivalent - 3/8', 1/4 screen ..._._.. SECTION F - TRUCKS (OFF ROAD) 37 EA frucx, jOfd- Roantp, Cat 725 or er�aaivaYenl 38 ....EA wCrucic (Off-Road), Cat 730 or eq, :ulivale:nl � � ........ 39 EA it aok, (Off- Cat 740 or aclurval snl SECTION G- SCRAPERS ................ 40 1 EA oracer. Cat 623G or eeuivalent 41 EA j9craper.Cat6212or� 42 EA 41 EA q.t 613G or orp, SECTION H-TRACK LOADERS . .C...... 9 at .. ....... . 44 EA Lrj�Ck 1. �,qq�r, I . . ........... __ _ _,cat 9 3D or 45 EA 'rrack Loader, Cat 963D or 46 EA irack i.mtLi, — Cat 953D SECTION I- COMPACTORS 47 EA Compactor, Cat 825orequ 48 EA Compactor, Cat 815E orec 49 EA Compactor, Cat CP56 or e4 50 EA Comoactor, Cat CS56 or es E El Compactor, �C.t CI''- 323 - -C or equ�J�2 nt 52 E Wacker Trench Halter, RT5620 or equivalent with 22" drum SECTION J - WATER WAGONS (OFF-ROAD) ............ 53 agon',,(Orf-Road), Cat (313 or equivaimil 54 EA 'Water 'wagon (Off- Roadl,. Cat 725 or equivalent SECTION K - WATER TRUCKS (ON-ROAD): Must be TxDOT Approved with Licei 55 EA ]Wader Truck (On-Road), 2,,000 gat. 56 EA Water Truck (On -Road) 3,750 or 4. 000 gai. SECTION L - MIXERS/RECYCLERS 57 EA Mixergiecycler, Bama Boma J OOR or equNalq 58 EA MlxerlRecyrler, ( M1 325 or eq0valent 59 EA MixerlE_nc,fer,CM1500oreqdvaient SECTION M - ASPHALT -LAY DOWN MACHINE 60 EA Ash dd - L,a7 Down Machine, 8ft. - 15 ft. SECTION N - ASPHALT ROLLERS 61 1 EA Aslvalt Roller 9 tar, 62 EA Asphalt RoWr,112ton SECTION 0 - ASPHALT MILLING MACHINES EA jAsphait Wng Machine 4 ft. head EA Asphall Millino Machine, 6 f . head SECTION P - BROOM .. . .. ........ 65 EA Brack RJ390 Broom or equIvatent EA j0pflow Additional cost for aIt r fjoc m Mlao'hrnenl SECTION 0 - DUMP TRUCK (ON-ROAD): Must be TxDOT Approved with Licensi 66 EA _1 Duppp Truck, 12 Yard SECTION R - BACKHOES 67 EA Ba(*hoe, Case 58ON or equivalent - Uhp class 68 EA Rackhoe, Case 59014 or equivalent . 100hp class ckhoe base p !R_ rice: 7-68i EA Add4icrral cost for cab with air condhoning ;7-681 EA I Additional com for 4-wlu-at drive . ..... ,7-68 EA cost for extendad'ig SECTION S - SKIDSTEERS 69 . EA .................... FMdsleer, Cat 216B or to uiKatipnt 69a EA Optlow Additional cost for tracks 70 EA %idsteer, Cat 226B or ivalent 71 EA Skidsteer, Cat 236B or equivalenil 72 EA Sklosteer, Cat 24,13C or eq0va[ent 73 EA Skidsteef, Cat 256C or equivalent 74 EA Skidsteer, Cat 262C or equivalent 75 EA Skidsteer, Cat 272C or eauivaWnt EXHIBIT 3 EXHIBIT F EXHIBIT 3 CONTRACT 1 BETWEEN CITY OF DENTON, AND R.B. . ; CO. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between R.B. EVERETT & CO. a corporation, whose address is 6561 MIDWAY RD, IJAI..,TOM j,!)� L'N,' 76117, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a horne 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A"); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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. T hese documents shall be referred to collectively as "Contract Documents." File # 5639 EXHIBIT 3 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 ma 51 CONTRACTOR BY: AU "11 1 ,10 V1,19 SIGNA161-111 Date: Namc. CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, ClTYM,,,i.Nl,F-7E-9 EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $225,000. Pricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C Standard Purchase Terms and Conditions The Contractor agrees that the contract shall bc governed by the f'6llowijq,.A, lernis and eonditions, unless cxeeptions aw duly notcd and fully negotiated. (Jilless otherwise sl)cCified in 1he emitracl, Sections 3, 4, 5, 6, 7, 8, 20, 21, rr nd 36 shall apl)ly only to a t(,r purchase good,, and Sections, 9, 10, 11:, 22 and 32 s hall apply (:)njy to as solicitation to purchase services to be pedbrined principally at the City's premises or on public rights-of-way. 1. CONTIZACTOR'S 011t,IG'ATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the (crins, c(,wentints, 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,, CONTRACFOR TO I)A,Cl ACE MU,I VIE RABLES: The Contractor will package delklerables in accordance with g(')()Cl coinaicrcia.d practice and shall include a packing list sl)(Ming the descrij,')tion ofeach itcin, the quantity and unit price unless otherwise provided in the Specifications or Stippleinental Terms and Conditions, ench s1iipping container shall be clearly and permanently marked as follows: (a) The Contractor's name -,:ind 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 numhci° of containers, e.g. box I of 4 boxes, and (d) the Inisilber offfic containe"' bearing the packing list:. The Contractor shall bear cost of packaging. [)Ohverahles shall he suiftibly packed to secure lowest transportation costs and to conform to all the requiretnent,s of cxrjil MOII carriers and any applicable specification. The City's count or VV69111 shall [-,w final and cOuclLisive On shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor 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).he deliverables. M fi EXHIBIT 3 The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. M�O= EXHIBIT 3 Environmental Protection: The Respondent shall be in compliance with ail applicab standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 EXHIBIT 3 14. TRAVEL EXPENSES: All travel, lodging and per them expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the tirne spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. EXHIBIT 3 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title tx* all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 EXHIBIT 3 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. EXHIBIT 3 EXHIBIT 3 City of Denton Materials Management Department 901 B Texas Street Denton, Texas 76209 EXHIBIT 3 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 deerned File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. EXHIBIT 3 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. M EXHIBIT 3 EXHIBIT 3 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. EXHIBIT 3 612. HOLIDAYS: The following holidays are observed by the City: 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 prn, 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 on is r ited fro * r that are suspended or debarred or whose principals are suspended or debarred frorn Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies File # 5639 EXHIBIT 3 that its firm and its principals are not currently suspended or debarred frorn doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurernent Programs, the State of Texas, or the City of Denton. EXHIBIT 3 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 contract, whether arnended or not, except aft prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of t respondent. I 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates defined by the United States Department of Labor Davis-Bacon Wage Deten-nination I http://www.dol.gov/whd/contracts/d bra. htrn and at the Wage Determinations websi www.wdol.gov for Denton County, Texas (WD-2509). I 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all darnages 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 File 4 5639 EXHIBIT 3 Should a conflict arise between any oft contract documents, i t s hall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents t o t he extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions EXHIBIT 3 Exhibit D INSURANCE REQUIREMENTS AND Upon contract execution, all insurance requirements shall become contractual obligation which the successful contractor shall have a duty to maintain throughout the course «<\ hl contract. Without limiting any of the other obligations or liabilities of the Contractor, the Contractor dn't, accepted by the City of Denton, Owner, «.. m nsurance coverage as indicated hereinafter. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained y < #« / \\ 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 Texa\ < » \z :* ? Best Company rating of at least /. \ § }\ better. 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 «! « >! < «%24 claims covered under «! « «<»J that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion • more than one « isred shall not operate to increase the insurer's limit of liability. EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. MM 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, LQQ, 000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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 mmm w each occurrence are required. a EXHIBIT 3 Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires, This type insurance should be required if the contractor has access to City funds. Limits of not less than mm www µµµµw 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. IMINTARM EXHIBIT 3 [X] Workers' Compensation Coverage for Building or Construction Projects Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File 4 5639 EXHIBIT 3 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. EXHIBIT 3 ........... . . Item # UOM Product Description --- . . . . . ................. . . -- ........... 1 SECTION A - DOZERS . .............. ...................... . . . . . . . . . ................. . ...... . I EA Dozer, Cat DI OT or equivalurit . ..... . . ....... ........ .... ............... — - ---- 2 EA Dater....,.. D9T or mffilvalent . . . ........... . . . . . . . . ............................ 3 EA Dozoi, Cat D8T or equivallent . . ........... . . . ................. - — -- ---------- 4 EA Dozer, Cat D7T or eqtflvalenll ..................... . --"111111111-1- ... . ...... I . . . . ................ ...... . . ....... .. . - 5 EA Dozer, LGP Cat D7R or PqOvalew . . ................. . ................ . . . 6 EA Dom,, Cat DER or equivalent ..... - ----- - ---1--1 1 --- I . . . .................... . . --- ""-, . . ............ . ---, . .. . . . .......... . . ....... EA Dozer, LGP Cat D613 or equivatLN . . . ................. ............ 8 EA Do'zer, Cat D6K or equivalent ..................... .......... - ..... . ...... . . . . . ........ ..... 9 EA Dozer, Cat D5M or etptivalel it , 1111. -- ------------ - 10 EA r.,tozef, Cat D5K or equivaleni ........ - --------- . .......... . . I I EA Dozer, LGP Cat DS... 5K or equivalent .......... ..... .. - — - - -------- - - . ..... . . ................. . . . ...... -- ..... ...... 12 EA Dom, Cat D4K or equivalent . ..... .. . . ......... ... — ---- - — - --------- 1-3 EA Dozer, LGP Cat D4K or ............ - — - - - ------- . . .. . . .................... SEC-nON B - WHEEL LOADERS — I I ........... . - . . . . . ................. 1 - 4 --- EA 1-1 WheM Loader,-Cat-968,!M! or e ri-d-valerit- ...................... . . . . . . .. ........................... . . . 15 EA Wheell Loathir, Cat 980H or oquivMent ......... . ............ . . .......... 11 ................. . . . . . . . -1-1 ...................... . . . . .............. . . 16 EA Wheel Loader, Cat 966K or AIWI[OP11 . .................... - --- ----- --------- - - --, . . ... ............... . . . . . .. ........... . ........ . ... 17 EA Wheel Londer, Cat 962K or equivi,,delra . .......................................... . . . . 111— . . .............. . . -1111-11 ...... . .................. . . . . . . . ...................... . . . . . 18 EA Wh( al 1_(3adp I H o aq wyL��pp�� .j,, Cat 9 r .... . ..... EA Wheel Loader, Cat 938H or . . ........ . ............ . . . ........... . ........................ 20 EA Wheel Loader, Cal 99�L Oro Ovaerit ............ — -- ... . . .............. -fl � ........... . .. . . .. . ............... . - - ------- - ---------- - - - ------- 21 EA Whool Loader, Cat 924H orc.,qiiiw.,flen1 ............. ............... . . ---, . . ...... ...... SECTION C- MOTOR GRADERS - — - ---------- - . .. ............... A 3rodar, Cat 12M or equivatQnt . .. ..... .. .... ......... ...... . 23 EA Molor Grader, Cat 14 M or e tAlvalent -tB'1111111-11-- -'- ...,,..-..............g...... .. . . . . ............. . . — ------- . .. ................. . . . SECTION D- EXCAVATORS .......... - - 11-1111111--- --- .. . . ........... . . ................. 24 1 EA Excavator, Cat 345DLoreqiiivalk,�iA . . . . ....... ........... . . . . . . . .......... . . ..... . ........... . . ........ 25 EA Excavator, Cat 336DL or equivi4ent -l-, I . . . ..................... 26 EA Exce'Yvalai, Cat 325 --, - . . . ...... ...... . . ....... ......... 27 EA Excavator, Cat 329E or q�' kinll wlGraple . . . ........... . " , juiva 28 EA Excaysitof, Gal 324E a OW11cM — — - - -------- - ----- . . ..... . . . . . . . ... ................... -- ------- ....... ...... 29 EA Excavator, Cat 320 or 0 ... ... ... .... ........... . . ........... - .-quiv lent . . ....... . ---1111111-11 . . . . ........... 30 EA Excavator, Cat 320DL or oluivinient w�Grripple -11,11,11, .......... — —' ...... ...... "I'll" ............ . 1111 1111 --- 31 E .. A Boavalor, �with ,h i audit brqg,ke ! �j .............. (ft ltal cki9s, Ca. . t .. ....3.....1. 2D . . 32 EA 1XIIwAor, with hydraullo, brealkLr 3,000 (11 lb) class, Cat 320DL . . . . . ................. . . . . . .. . .... ............. . . . ..... ... 11 .................. Sw!l EA Excavatoi, w4h hyd1raulk., breaker 5,000 ot ll[�) class, Cat 320DL - --- .......................... 1- ........... . . . . . . ...... 34 EA Excavator, Cat 320 with zero lallvirt or equiwArufl, Cat 320D . . .. . ....... . . ..... .......... SEC'T'ION E- SOIL SCREENERS . .. ...... . ........ 35 A 770 o fle il� 3/8" - 1/4" screen 36 'Sail Screener, x/ -! 1�1!) P 1 3/8" - 1/4" �3ovk'jn J'!n_� L SEC'IION F - TRUCKS (OFF ROAD) -------- - ------------------------ EA (Olf-13p , Cat 725 or nlval +ant ...... . — ----- 38 EA 1'ruck, (011-Rocid), Cat 730 or eql)[w lent .... ........ ........ — ---- - '3j A I'mck, (Off-Road�, Cat 740 or equivalent -- SECTION G- SCRAPERS . . . .......... . ......... .......... 40 1 EA Scrdpsi, Cat 623G or cquivateajt E*MtT 3 R.B. Everett & Co. Haltom ("Ity, TX Make/Model offered Weekly Rental M..tly Rental I leilvery/Pickup I Charge 41 EA S repaer Cat 621G or e tpitwroalatouat ........— 42 EA 5r r-apor, Cat 615C or rar er�eraI 43 EA °at ra er Cat 613G are tplwarruat ......... ......... SECTION H -TRACK LOADERS .. --- ........ _ ........... - .. 44 EA Track oader, Cat 973D or equival a ... . ................. .... 45 EA I u ar to Loader Cat 963D or etr)eriv alerat �.., 46 EA Track Loader Cat 9 5 D w east SECT10N I- COMPACTORS 47 Compactor, teat Cat 825 or f,r�arry !utr nl ..._. ..w �___ _. _ ....................................— E.,..... — y ,vraleral 48 fioutrlaerc.tar, Cal 81hF or euTral„ — ........ .... — 49 EA [ uanvpuactor, Cat CP56 or equiwalent 50 (moo , a arlop Cat .. EA 56 or uas ugvote ul ....... . ....... 51 EA C�oniparaetwr Care CP -323 C or 0, qqjvaient EA Trench Roller, RT5620 or OCr UiValerat, with 22" drum 52 _ Trench ......... .....— . .. ... ....... SECTION J - WATER WAGONS (OFF -ROAD) __ .... J__54 4fld+rler Le^porlCltl RoradJ Cat 613 or e Ttauv sle rat EA Vtiaatr�r hAr a0rarre gOlt w arli Cat 725 or rr(uivalow SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Lice 56 Vk attrr Truck (Oua R[a acl} + Ot16 (lual — 55 EA 'VV akr r Tr Truck CJra Ro ad s 7 + or 1,tY0tt cTaO EA r y.. „_.... SECTION L - MIXERSIRECYCLERS _ — 57 EA MlxerlReas yrlm 11a�a n ag 10(kf� or P, uivalent — t . ................. 58 EA MlxerlR Oen CM1325oraacariva8epat — , .... — 59 EA iiiiiMixerl' ter „clew'„ CMI 500 ar nt(eraw tloattl SECTION M - ASPHALT -LAY DOWN MACHINE 6 ..... _ 0 EA Aspalaaalt -Lay Dawn Machine Sft - 15 ft. SECTION N - ASPHALT ROLLERS 'j”' 61 A ala alt Roller, 9 ton _. EA ( 2 t A Asatlalt Roller, 12 ton _._ ... , ...... _ .._ ...... _.. --,,, SECTION O - ASPHALT MILLING MACHINES _ ...... 63 EA A Ialt alt MIIIrrig Machines 4 ft head ... _ __- .,,,,,,, 64 EA As rtaalt hftttanc Mact Jrtn 6 ft head ...... �__ , r.. )— ........ - ....... ........... ...................... N P - BROOM s5 tTaBw k dt IT5V1 Broom or cnr ntvc _rat M EA cost for Tratler boom attachment EA 9 65a CI llrrra Additional -- SECTION� f Q �- DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with License a i , Pf _ :k 12 Yard 66 dTLYIYa na .. ................... — .... ....,,. SECTION R - BACKHOES ............... . ____ ........ — 67 EA B ackhoe, Case 580N or ealu ivsaie nt 8 shin class — _ ..... �. 68 A 'B actihoe, Case 590N or a t, uivalent 1ll0tal class - - -- — Op pons added to Backhoe base larir�4: — .n .. _. ... ............ a'7 -68 EA �,Adallllura J cost for cab with airo ondilionnttp — — — .... ..... ......_._ 7.68' EA Addattra¢yrap cost for 4 -wheel drive EA cost for extond arla 7.66 . Arlclitrn v it , —. ... — ........... . SECTION S - SKIDSTEERS - - -.... ..... ........ ... -, .. ..._ 69 EA Sktdsle r, Cat 216B or c claurw"atetal 69a —..., ..... ............ ..._ EA ; pflon: Additional cost for tracks 70 Skid tee r Gat 2613 o -- ..._.. EA r aa(arrvratel'at 71 EA Skii1 1r e r Cat 236B or c titilv.rlrant 72.. _ ..... EA %ids'tenr, Cat 2460 or eq uivalteral d ..... 73 EA Stilc9s9oor, Cat 256C ..... � ......... .... .............--- ...... _......... 74 EA §kaal teoi, Cat 262C or equivalent 7 5 EA kidsleec Cat 272C or oquiivtaleN EkMiT 3 EXHIBIT 3 2 - -1 DI Big M0=16 0 FIA W, M 0 1 M IT N WA *19VA (FILE 5639) For and in consideration of the covenants and agreements contained herein, and for thq mutual benefits to be obtained hereby, the parties agree as follows: ��f $ V � Supplier shall provide products and/or services in accordance with the City's document Rjl` # 5639 Rental,of;[-1,eay.y,_j- gi 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: V EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written, ATTEST: JENNIFER WALTER S, CITY SECRETARY FAA Ifflosw4evylummm M rs y . .......... . ............... AUTHORIZED SIGNATURE / — � I— / Dates 3 Name: fi 4&-1 Title i g & 1 - 11,3 g-& PHONE NUMBER M 5, r Yl i f/7 0, 6nt,eOf" ... rly ...... .. EN All., "S BY: .3'F— T7 Ti:�� GEOR.67,TC-TAMFIE Y, �4 ER. [ME EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $525,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C �Wtandard Purchase Terms and Condition-s The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, • 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized ship the deliverables under reservation and no tender of a bill of lading will operate as a tender deliverables. I 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City *nly when the City actually receives and accepts the deliverables. m1moulwo EXHIBIT 3 The contractor times, -, • • - precautions for employees, participants and others on or EXHIBIT 3 Environmental Protection: The Respondent 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.). EXHIBIT 3 14. TRAVEL EXPENSES: All travel, lodging and per them expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose • filling this order, such special tooling equipment and any process sheets related thereto shall become the property • the City and shall • identified by the Contractor as such. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE /WE 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 File 4 5639 EXHIBIT 3 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. EXHIBIT 3 EXHIBIT 3 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 • 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 • the Contract. EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 29. FMIUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to • submitted • the Contractor to the City shall • grounds for the termination of the Contract for cause by the City and may result in legal action. M EXHIBIT 3 City of Denton Materials Management Department 901 B Texas Street Denton, Texas 76209 P EXHIBIT 3 34. NOTICES: Unless otherwise specified, all notices, requests, • other communicatio required • appropriate to be given under the Contract shall be in writing and shall • deem • delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified 4 Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deem] FATSWIWI EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. MR-SIUMS] EXHIBIT 3 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. 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. 4 The Contractor shall not advertise • publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. EXHIBIT 3 EXHIBIT 3 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 ,i.ocument shall have any force or effect to change the terms, covenants, and conditions of the Contract. EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Leg Holiday falls on Sunday, it will be observed on the following Monday. Normal hours operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City Denton Holidays. Any scheduled deliveries or work performance not within the normal hours operation must be approved by the City Manager of Denton, Texas or his authorized designee.1 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 FWARIVINE EXHIBIT 3 that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, w - by - - Administration of Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis-Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website www.wdQtMy for Denton County, Texas (WD-2509). 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that n provision of the Contract is in any way intended to constitute a waiver by the City of Denton any immunities from suit or from liability that the City of Denton may have by operation of law], Should a conflict arise between any of the contract documents, it shall be resolved with tho following order of precedence (if applicable). In any event, the final negotiated contra shall take precedence over any and all contract documents to the extent of such conflict. I 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions M• EXHIBIT 3 Exhibit D 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: Im Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. m 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. EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, F, EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. ® Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $600,000 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. MITIMM EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than w mmIT 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. File it 5639 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. E. The contractor shall obtain from each person providing services on a project, EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on MMMMMM EXHIBIT 3 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. 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. EXHIBIT 3 Exhibit E ...wm _ ...� ........_ ......... - - -- - -- CON FLICT OF INTEREST QUESTIONNAIRE - FORM CIQ Fo_r 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. 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 by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(x). 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, Vocal Government Code. An offense under this section is a Class C, misdemeanor, .____....,. ................._.__....____......__......... .- ____..____- __....______..__ -- .. _..... _. Name of person who has a business relationship with local governmental entity, .._.......,... ,,,,,. -------------------- - 2.1 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 e the on ' __ � ... becomes incomplete or inaccurate.) .._ drafter the dot ............ ....._.mall filed uestionnaire ,....,........................ _ _...... 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer 'Phis 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? pppp ...............� yos �...,....,._m,d! No P3. Is the filer ofthe 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 sectionf AND the taxable income is not received from the local governmental entity? L...... ....�I Yes G..^.m...I No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? ,..,,..� Yes 1. � No D. Describe cacti affiliation or business relationship. ........ ...... - -- _ e ... ....... 4 C I have no Conflict of Interest to di close. ..w, ...... .. - W�Iiinn.. ofl person doing business with the governmental entity Date EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT TKO Equipment Co. Grand Prailrie, TX . . .......... . . . ..... . . . ....................................... . . . . . ..................... — - - --------------- Item Weekly # om Product Description Make/Model offered Delivery /Pickup U Rental Montly Rental Charge SECTION A - DOZERS . ...- ...._... - --- _11'.... 11____'..._____.__. EA Dozer, Cat D1 OT or equivalent . .................. 2. . . EA . . . Dozer, Cat DgTorequNaient . . . ................... . ........................................................... .............. . . . ............ . . . .................. 3 EA [:)czar, Cat D8T or ocIrdvalerdl ...... . . . ...... 4 G Dozer, Cat D7T or equNsilerit . ............... ........ ................ . . .... - .5 I'll— EA 11111111111 Dozer, I Gl:1 Cat D7R or ertirivaient ----- ------------------- ------ - - - - -- ------_._.------------ _. -,.- EA - - - - ----------- Dozer, Cat D6R or equivalk.,ni - . ........... 7 EA Dozer, LOP Cat D6R or cquivalent 8 __ EA Dozer, Cat D6K or equivaloni ........................................................................ .......................................................... ........... ... 9 .......... . EA ........ ....... Doxe,,f, Cat D5M orequiv,,font 10 .."11-11--l", EA Dozer, Cat D5K creqtiivi, eol --- — --- ------------------------------ 1-11"........".1-11_111- - 11 111111 EA ----------- Dozes, LOP Cat D5KorrT0vaI(.,nI 12 EA Dozm, Cat D4K or oquivalent 13 EA . LOP Cat D4K or e�qwvaltnrR . ... .... ... ........ .. .. SECTION B -WHEEL LOADERS ................ . 14 EA Wheel Loader, Cat 988H oretlidvalent . . .. .................. .............. .. ....... .. .. .. . . . ..................... .. .. .. ............ .. . . .. . .............. 15 EA . Wheel Loader, Cat 980H or equlva�anl .......................................... . . ........ . ....... . . .................. . . . ..... . . ....... . . ............................ . . .................... 16 . ................ ...... EA Wheel Loader, Cat 966K or equivalent 17 EA Wheel Loader, Cat 962K or ezaTululttcalnt . . . ......... .. . ................ ................ .. .... .. .. .. ...... . ....... ........... 18 EA Wheel Loader, Cat 950H or oq0v,',,lkjnl 19 If A Whm-4 Loader, Cat 938H orogulivalent 2 0 . . . ............. EA Cal 93(lid oroglhvalonI . . ............ 21 EA . . . . .......... Whe�iet Loader, Cat 92 H or e uivalent -1 -1 -1-1111111111", 1 1 1 - I I I �' I I I "I SECTION C- MOTOR GRADERS IMaatr;r r �'l, r", C at 12 M o - — - .............. . .......... . ...................... r etjuivalent 23 Motor OrWor, Cat 140M or equivaloN ........ . . . ......... — -------- ----------- - -- ---------- �SECTION D- EXCAVATORS -------- -- — ------------ ------ — - — ------ ---- 24 EA Excavattx, Cat 345DI-orequivaleni 25 EA Excovatoi, Cal 336DL e or grAlvajoill 26 . ..... . ...... EA . . ............. Excavator, Cat 325 or C,1tl1JiVrAI0i1t . ...................... ........ 27 . ..... . . ....... . .......... .. EA ....... . . .. Excavator, Cat 329E or equivalent wiG 28 EA m Excavator, Cat 324E OvMeir: ..................................... 9 ", , 29 -111,111, EA - - Excavator, Cat 320 or oq0vlaleM - ----------- - - - - - - . . . . ............... . . ._'_'_ . . . . ........................ 30 EA Excavator, Cat 320DL or oquivarent M( - -------- . ..... . ...... ' , , , 31 EA Excanralni, withhyrliaL&,, breaker 1,500 - --- ----------- __.. 32 EA Excaw0t.)j, with hydr,,.)ulgc breaker 3,000 33 EA . Excriv,,Acn, with hyMraukc breaker . --- 34 ................. . IEA ... ........ ... Excavator, Cat 320 with zero tW q4r or t ..... SECTION E- SOIL SCREENERS . ..... ........ ---------------- . . ..... . ............. . 36 EA Sod Screener, Terex/Finely 7 eqUIV ----------------- — ------------------------ - - - ----90 or --------------------- SECTION . . . F . . . . . . . . - TRUCKS (OFF ROAD) . . .......................................................... .... ... . I E:: A I r P(,,,k, 38 EA 'truck, (Olf-Road), Cat 730 or oqoivalesrt . ...... ....... . I ------------ . .......................... EA 1'ruck, (Off Road,), Cat 740 or utlijivalleul . . . ............. . . .... . . ............................... . . ... . . ..................... . . . .................. . ...... SECTION G- SCRAPERS ..... ... 40 1 11 :A ... ........... Cat 623E or equivolera dwv, Car 312D class, Cat 320DL ............. Cat 320DL . . . . ................ l4dit, Cat 320D HEIM carne 1 1 $ 7,2B4 80 1 400.00/400.00 EXHIBIT 3 EXHIBIT F 41 A _..,,,... 11crau rare Cat 621 G or e ulvcugont a - -...._ ... ..... ......... ......... 42 A - - Scraper, Cat 615C or equivalent ... 43 EA ac r a e Cat 613G or s e rlival " F - ent SECTION H -TRACK LOADERS ......... 44 EA I lack Luo Rdu� r Cat 973D or ua tulu alonl 4a EA t stick Loader Cat 963D or e, + +M °(tiaau aIeM -.. 4ta A ....... .... I a k I oncSe i Cat 953D ore isav d ruR _....w_ .... - - - - -- - - SECTION I- ---------- COMPACTORS - - -- - .................... - - -- ..................................... __ ......... .......... 47 — G A Compactor, Cat 825 or equivalent - - ...................... -- -- 48 EA C ort parlor Cat 8 .. ...r ..... .. ... ........ ... ..... 49 A.C,om .,, ruclr i Cat CP56 or equivaalcrut �..... ............ ....... m m . _ -- --------------------------------------- .... 50 EA 1 Cornpac.'Mr, Cat CS56 or equivalent --- - - - - -- - - - - - -- 51 EA i unuhacr ur, Cat CP 323 C or equivMent - - -- .... ........ - -._._ - ...... 52 EA Wacker Trench Roller, RT5620 or equivalent with 22" drum SECTION J - WATER WAGONS (OFF -ROAD) 3 A Waulc a aV ar ras C7 t Uroea ad; Cat 613 or a ulyzs9c nl _ ..... _... 54 E A, ti ri r Waa o i (Off Road) Cat 725 or exg Iv ada nt SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Licei 55 A W alor Truck (On Road) 2,000 tg ti. — - 56 EA W aler 1'ruic k (Ori 13oad) 3,750 or 4 000 d al SECTION L - MIXERS /RECYCLERS ..... ........ — 57 EA rflaxr rlHuac yclusr f Iomat1,100R or c rtuivalent 58 EA h9ixa rPiae Yr Icar CMI 325 or ctrivn9x rat - -------------- ....- - .... . 59 EA MRxei11Eecycter„ CMI 500 or equivalent SECTION M - ASPHALT -LAY DOWN MACHINE 60 IA y A rlatt alt t �a Down M uu Isuna�,, 8Gi 1Pf ft! w . SECTION N - ASPHALT ROLLERS 81 II A A Rlad.nit....Roller 9 ton �m;phalk 62 EA Roller, 12 ton .. SECTION O - ASPHALT MILLING MACHINES 65 Ell aalulw ill Milling r0a hme Oft head ................................ --------- 64 A Aai>laaail Mrllriagg Machine 6 ft. head SECTION P - -BROOM -- - _ 65 A Brock RJ350 Broom or equivalent 6 5 a EA r11alkruY Additional co t for tgutter boom attachment SECTION Q - DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with Licenst .. - -- . rt ` f 94 Cgamgwga Vgnc' 12 Yard - - -.._.. SECTION R - BACKHOES 67 1 EA --- ----------------------------------------- -------- - - - - -- ... _ ................ .................... _. Icar khoe Case 58ON or cquiv'alrant - 85hp class - — - - -._._ . EA B acMioe, Case 590N or r,quivEakmt • t;ilthg!r class Op iorss added to Backhoe base (aura 7 -68 ....._ EA Addillon iil cost for cab with air a ondiflorRiwra( ....... ......... ........ _... r7 -68 EA Additional cost for 4 -wheel drive - i7 -68 % Additional cost for rraxtt! idartr6 -.. „ ,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,, ,, -......_ - SECTION S SKIDSTEERS �. 69 EA Skidsteer, Cat 2168 or e(ItflvMent 69a EA I plionf Additional cost for tracks Y0 EA Skidsteer, Cat 226E or r jualyyMalenl _..... ._ ww. 7,1 IEA -. Skidsteer, Cat 236B or rsegruuvaalu rRt ........ ......... ...... 72 /1 Skidsteer, Cat 246C ore ¢guivale l 73 I A Skidsteer, Cat 256C or ras uivrilent . .- - -- 74 A Skidsteer, Cat 262C or equivMent y __.., .. - 75 EA Sddskxr. Cat 272C or ecn.rivp.gerrt same,,,,, !$ 7,536.00 400.00/400 00 same $ 6fl2g .80 300.00/30000 same a 6,028 80 300.00/300 00 same - - ... $ 8,540.80 500 00/500 00 same $..... - 7,536 00 — 300.00/300.00 ... . ------ Bomar MPH364R -2 -- �, - _ ............ _ - ........ ....... $ .- 7 988 16 ... ........ w �.. 400 ,00(400.00 . . .. ._ EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND UNITED RENTALS (NORTH AMERICA), INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between UNITED RENTALS (NORTH AMERICA)-, INC. a corporation, whose address is 3909 I -35 FRONTAGE RD., DENTON, TX 76210, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File 4 5639 EXHIBIT 3 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 am APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY NX File # 5639 CONTRACTOR BY: SIGNATURE Date: 7 1 7 00 2 Name, Title: Q 2 >2 J J PHONE NUMBER ta"?'f" IP -, "' 4"% EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $525,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. 'Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap genei_tted, 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. IOa - IOd) 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol .gov/wlid /contracts /dbra.htm and at the Wage Determinations website www.wdolgo_y for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2.. RFPBid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $600,000 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. File # 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 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. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other erson doin g business with local overnmental entit This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(x). 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 �Ocal governmental entity. n +� P 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 7th business day after the date the on inally 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, 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 No 13, Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes E:::] No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes El No D. Describe each affiliation or business relationship. 4 '...� ... _. _ _.... ...,.. ....._. -•••• I have no Conflict of Interest to disclose. 5 �a �r f ...........� _.... wtgjM16 c of person doing business with the governmental entity I:tastc File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Item UoM Product Description Make/Model offered Ar SECTION A - DOZERS 1 EA Dozer, Cat D10T or equNalem 2 EA Dozer. Cat D9T or equivatent 3 EA Dozer, Cat D8T or eqOvalent 4 EA Dozer, Cat D7T ore uivalent .... ................... 5 EA Do�zer, LGP Cat D7R or equivNent 6 EA Dozer, Cat D6R or equivrdent 7 EA Dozer, LGP Cat D6R or equwalent 8 EA Dozer, Cat D6K or equivalent ....... ..... 9 EA Dozer, Cat D5M or equivalent 10 EA Dozer, Cat D5K or equivalent 11 EA Dozer, LGP Cat D5K or equivalent 12 EA Dozer, Cat D4K or equivMent . ........... . . .... ...... 13 EA Dozer, LGP Cat D4K or equNalent SECTION B - WHEEL LOADERS .......... 14 EA Wh,eef Loader, Cat 9!��IvMent 16 EA Wheel Loader, Cat 980H or egOvatera 16 EA Wheel Loader, Cat 066K or LquhLn 17 EA Wheel Loader, Cat 962 Y!lv:difn! 18 EA Wheel Loader', Cal.950H .o..-r . .. aAijalent 19 EA Wheel Loader, Cat 938H or equivalent .......... . 20 EA Wheel Loader, Cat 930H or equWalenil 21 EA Wheel Loader, Cat 924H ore quwaleni .. .- - - - - -- SECTION C- MOTOR GRADERS `:F�23 Motor G�rader, urvalen( SECTION D- EXCAVATORS :2:4:1 EA Excavator, Cat 345DL or e ulvalent 25 5 EA Excavator, Cat 336DL or 26 EA 'Excavator„ Cat 325 or eqOvalerl 27 EA Excavator, Cat 32RE.��..yy�qlneLe_. ................... 28 EA Excavator, Cat 324!EorequNalerrl 29 EA Excavator. Cat 320 or equNalenll 30 EA Excavator, Cat 320DL or equivatent MGrapp!e, 31 ......... .............. EA Excavator, with hydraulic breaker 1,5010 Cat 312D 32 EA Excavator, wrth hy�rauflc breaker 3,000 (ft lb) class, Cat 3,20DL 33 EA E.xcavatof, i rauik� breaker 5,000 (0 lb� class, Cat 320DL .L .......... . 34 EA Excavator, Cat 320 with zero 04gpin or eq LiNalent, C Lt SECTION E- SOIL SCREENERS . .. .. .. ...... 31.[..EA,,o1Ii Scrt,,iener, Terex)t!ag2=2E_tq2i alent 3/8" - 1/4" screen 36 EA �Soil screener, Tetexfjnel 790 ore uiyalent 318" - 114" screen . ....... SECTION F - TRUCKS (OFF ROAD) 37 EA Road), Cat 725 or eqt6valant ....... 38 EA Truck, (Off .,Road), Cat 730 o!1 tai uuva9arlit 39 EA Truck, (Off-Road), Cat 740 or equlvalenl SECTION G- SCRAPERS 40 ] EA J'--Smaw. Cat 623G or emdvalenl 'r�' Case 850E ... Case 850L Case 850L LGP Case 750L Case 750L LGP Case 721 F United Rentals North America Denton, TX Weekly Rental I Montly Rental I Delivery/Pickup Charge $ 1,287.00 S 2,979.00 $125 one time fee $ 1,287.00 $ 2,979.00 S125 one time fee ...... . . . . . . ............ - $ 1.496.00 $ 3,459.00 S125onetimefee $ 1,199.00 $ 2,669.00 $125 one time fee $ 1,227.00 $ 2,929.00 S125 one time fee $ 1,964.00 V $ Deere 200DLC..or Case CX21 OB $ 1,889.001-S. Deere 200DLC or Case CX210B d $ 2,059.00 $ Deere 20ODLC or Case CX21 OB 1I $ 1,889-00 1$ 125 one time fee $450 one time fee $450 onetime fee one time fee EXHIBIT 3 EXHIBIT F 41 EA 62 G, Lejj��ILIenll ................... 42 EA Sara, er, Cal 615C or equivaleril 43 EA acr�aratr Cat 613G or erlulvaNerft SECTION H-TRACK LOADERS ......................................... 44 EA Track Loader, Cat 973D or equIvaIent 45 EA Track Loader, Cat 963D or dvaient . . ............. . 46 EA Track Loader, Cal 953D or equivalent SECTION I- COMPACTORS 47 EA Compactor, Cat 825 or equivalent ...... 48 EA Compactor, Cat 8 1 5F ore uivalend 49 EA Corn ctor Cat or eE�yM , Lit 50 EA t (Sf�a, r E, �qL�,Lj _�p_ a ,LL _ ................. 51 EA Compadof, Cat CP-323-C or equjvMent ........... _,.j2 E� L _ a_ Trench Roller, RT5222 or e. uivaienl with 22" drum SECTION J - WATER WAGONS (OFF-ROAD) EA �Water Wagon, (Off-Road), Cat 613 or equivaGent EA Water Wagon, (Off•Road), Cat 725 or eq pivalent SECTION K - WATER TRUCKS (ON-ROAD): Must be TxDOT Approved with Licel 55 EA ],Wa�er EA U -1}, 3,750 or 4,0�00 gai, 56 n2 _ 1 SECTION L - MIXERSIRECYCLERS 57 EA xer/Recycler, Bomq I OOR or aqoi vaient . . ............ 58 EA ��MlxerliReaycWr, CIVII 325 or equivMent M x" EA "r 59 MixedRecyder, CM, 500 or erc uuvafepvt SECTION M - ASPHALT-LAY DOWN MACHINE 60 EA . . ........... . . . . sr hak - Lay Down Machine, 8ft, - 15 ft. SIEC'nON N - ASPHALT ROLLERS 61 EA� A�haILRolle.r, 9 ton As itaalt Roller 6 2 [: EA _ I ?top SECTION 0 - ASPHALT MILLING MACHINES 63 EA Asphalt. Milling Machine, 4 ft. head 64 EA As halt Machine. ft head SECTION P - BROOM ...... . . ......... . 6�5 EA 2L�q.�iLii5 i�� Brock __ :6 6. EA Olption, Additional cost for gutter fool altachnient �j E1:1111", . .. ...... . ........ SECTION Q - DUMP TRUCK (ON-ROAD): Must be TxDOT Approved with Licensf EA �Dkjmp'rru0, 12 Yard SECTION R - BACKHOES . ............................... - . ........... 67 EA Backhoe, Case 580 or e, uWalent, 85 class m. 68 EA Backhoe, Case 592N 21 ohs L4yajenl 100hp dasg qyllons added to Backhoe base pncw 7-6 . & EA Adtfil [o oal oosi for cab wil h air r onditioni rig .. . .......... 7-68 EA Additional cost for 4-wheel drive EA . 1 ]Addiflonal cost for exandadi ........... . . .. SECTION S - SKIDSTEERS 69 EA Skklsieer, CA 216BqreLdwlleLil 69a EA _Qj for tracks 70 EA Skldsteer, Cat 226B or . . . . ................. . _.— ................ 71 EA Skidsteer, Cat 2368 or e9t4valent . . . . . . ................. . ..72 EA Skidsteef, Cat 246C or equivalent ....... . ...................... 73 EA S,Mdsteer, Cat 256C or esuivMont 74 EA Skidstear, Cat 262C or a OvMent 75 EA Skidstcer, Cat 272C or eq ovaTent U1013 nq!tfa�qfoller 3410 Smile Smooth Roller BW124PDH .......... r RT82SC Trench Roller ner M2 106 $ 1.579.00 $ 3,359.0 $125 0 netimefee $ 1,579.00 $ 3,359.00 $125 one time fee $ 820.00 $ 1,659.00 $125 one time fee $ 638.00 $ 1.329.00 $125 onetime fee $ 1,408.00 1 $ 3.520.00 1 $125 one time fee 3roce RJ350 8' Enclosed Cab Broom $ 979.00 $ 11,38900 J $125 onetime fee :reightliner M2 106 1,412.00 $ 2,919.00 $125 one time fee Case 58ON or John Deere 310J 682.. 0 . 0 $ 1,349.00 [$125 one time fee Case 58ON or John Deere 310J $ 25.00 $ 75.0;0 NIA 0 NJ Case 58ON or John Deere 310J $ 15.00 $ 45.00 N/A 30 NIA Case 58ON or John Deere 310J $ 25.00 $ 75.00 N/A EXHIBIT 3 IFY CERTIFICATE OF LIABILITY INSURANCE &wiE_(M' —MIDDfYYYY-) BELOw 1/28/2015 TWE IES THIS crwrIFICATE OF INSURANCE DOES NOTCONSTITUjE'A CONTRACT BE EN THE ISSUING INSURER(S), AUTHOR17ED AS A MAI TER OF INFORMATION CONFERS NO RIGHTS UPON THE CERTIFICA'Tr 1-401 DER HIS �T THIS CrRTIFfCATE IS ISSUED NJ. Y -fCATE DOES NOT AFFIRMATWELY OR NEGATIVELY AMEND EXTEND OR ALTER THE COVERAGE AFFORDED BY THE �ol"'I� CERTfr o 112015 2015� IM REPRESENTATIVE OR PRODUCER AND THE CERTIFICATE HOLDER. If the e ate holder Is an —A �e'certlflc_ terms d conditions of the policy certain Policies may require an endorse Indor ment. A statement �BRO� iATiON IS7W� WAIVED . .... does certificate holder in lieu Of such t _�-; r� I the rms an I-)Di: FZW417INSiTR6, —thep.r.�y(1;.) e ndo ed: IF S �_RODUCER_ "ON not confer rights to the "W RC IEN DAUM' TX 75201 A 21 6 9 6 00 INSURED JNITE RI Ad S(NORTH AMERICA), INC. 1352196 3120 SPUR 482 SUI TE 8 IRVING TX 75062 ACl d ar r i, M I 11-1t;A TIE qlLk4 3-- MEVISION NUME CERTIFICATE MAY ANY REOU6�[,_-,MENTI IERM ()R (,C��gwrj( I S 9 U ED 10 '11, f_ I N -ISTANDI04C' r� r MR� N C I L I 1E RI 0 E 10 W TRA VWE -6 f -_ EN R INDICATED, N01 WIN Hl_ I C5�2 - — — BE ISSUED OR MA )N1 -01 KA �f, CON �Oj� �r�jr- OF ANY XCLUsi NS AND CONDITI(ftS OFS Y PERTAIN, TF E INS RANCE AH`0Nr,)j2[) TRACT ()R OTHI"'R D0CIjMFNT Y PE'Ra ' F'01 ICIL WITH RESPECT TO WHICH THIS R UCI'IPOLIC'1E',S LIMJISv�Ho By T"IE �$ `ESC�RIKD HLRF,�J� INSURANCE AD L %MR WIN MAY HAVE BLEN RVrIUC�Fr) S SUBJECT TO ALL THE TERMS, TYP Or FAY PARR" - A x �AMETACIAL GENERAL LIABILITY POL-try NUMOER POLICYEFF POLICYLx, CLAIMS-MADEE OCCUR N N XSL G2 3374 0 1 Y LIMTIS 10/1/2014 101112015 1"ACHOCCURRENCE NA—WC S¢aRIFaYD 3,000,0oo Va ocow.,1 Ild-lo fvvl ' _F1r_'N_'IAGOV�LG,ATE LIWI-T X 6'oucyoPRO LOC ECT N A A? To M OU I LIABILITY ANYAUTO ALL OWNED S CHES S D U L E D AU To s AUTO. H IREDAUTOS ANUQNOW N ED B X UMBRELLA L' AB X oC"CUR EXCESS LIAB — D J-- �.:.`�..l ---- j tr 4 LNr MN S COMPEKFA-iio—td- A AwoR,��LRS PLOYERS'UABIL ri Y E 'I A111 if fM MKWA R FXXI ul4j;j im 10/1/2014 2 2M A C NxNon,SjhlF�aaluPaarr � ow MWEEIMM Y,' N N W ('480T&AZ� 'S) - INIA WLR 80 (A � 80W. 87MA CI S1 S`(_"480 1! 8�)94)(W�j` N IN j ( V (� A 1 , C4 M I I 8—f , 0 54 A — , WA) f " I (41000 36 7. (10 10/1/2014 0 ' /20 1 4 10/1/2015 0 ' /2 15 P 10/1/2014 0 1()/1/2015 flO/111//2015 M 1 0/1/2014 10/l/2015 N 10/1/2014 10/l/2015 10/ /2014 0 1 1 1 0 Ll LY INJURY (Per Person) $ "Oo .Y INJURY (Per avej4o,' YDAMAGF OCCURRENCE $ EGATC, $ 2 EACH ACCIDENT 10/1/2014 lo/j�j_015 ?vl I I S2 10/ /2014 1 10/1/2015 SMM CSIIIDTIINIM il, DEScRIPTI'N -L-__t (Attach ACORD 101, .iION A1-1iw� Marks Schedule, may AI)91110NAL INR_'�RMA b More space is re4uhred) a be attached if 13328562 CfTY OF DENTON TX :' 9108 TEXAS (�'T ' DENTON TX 7C2bg SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. w The ACORD name and logo are registered 8-2014 ACORD CORjY6_RA—fj-0—N reserved of ACORD er'ed EXHIBIT 2 ORDINANCE NO. 2015- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE RENTAL OF HEAVY EQUIPMENT FOR VARIOUS CITY OF DENTON DEPARTMENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5639- RENTAL OF HEAVY EQUIPMENT AWARDED TO THE LOWEST RESPONSIBLE BIDDER MEETING SPECIFICATION FOR EACH ITEM, IN THE ANNUAL ESTIMATED AMOUNT OF $1,175,000 FOR A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $3,525,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the rental of heavy 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 5639 B &R Equipment Co. Exhibit A 5639 Kirby -Smith Machinery Exhibit A 5639 United Rentals Northwest, Inc. Exhibit A 5639 Bane Machinery Exhibit A 5639 T -K -O Equipment, Inc. Exhibit A 5639 R.B. Everett & Co., Inc. Exhibit A 5639 Landmark Equipment, Inc. Exhibit A 5639 Hertz Equipment Rental Corp. Exhibit A 5639 Associated Supply Co, Inc. Exhibit A 5639 Blue Line Rental Exhibit A 5639 Closner Equipment Company, Inc. Exhibit A EXHIBIT 2 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5639 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 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY m BY: min 0 min min MIN MIN min min min 0 min min 0 min IIIIIIIIIIIIIIIIIIIIIIII 0 N F W z 0 z E 3 i ■�1�1� -1� � ■�1�1� -1� ■ ■�1 -1� 1101111111 MINIIIIIII M■ M■ MINIIIIIII 1101111111 MINIIIIIII 1101111111 1101111111 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ASSOCIATED SUPPLY CO., INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between ASSOCIATED SUPPLY CO INC a corporation, whose address is 2019 AIRPORT FRWY, EULESS TX 76040, hereinafter referred to as "Contractor," and the CITY OF I)ENTON, 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 lay the Dewon City Manager ( ,,)r 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 RI 1' # 03) j�C.�nta rf ] 1� avy ui )pj�,i7t, 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 alad the following items which are atfachcd hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit `B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5639 EXHIBIT 3 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 : File # 5639 : AOTI*I'ORIZED SIGNATURE Name:_ '�cr Title: .... PHONE NUMBER EMAIL ADDRESS CITY OF DENTON, TEXAS BY: _ GEORGE C. CAMPBELL, CITY MANAGER Dale.- EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $150,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 reguhitions iii the performance of the services, including but not limited to those proniulgarted by tlae City and by the Occupational Safety and Health Administration (t),SIIA). In case of caottllict, the niost stringe�W safety requirement shall govern. The Contractor shall indemnify and hold the City harrmIcss from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipnacnts or deliveries are authorized by the City, a separate invoice must be sent for each shipnient or delivery made. B. Proper Invoices must include raa 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day observed If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 5:00 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States, C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at littp: / /www.dol.goy /wlid /contracts /dbra.litm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The . Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE NWEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [XI A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [] 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, File # 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 EXHIBIT 3 ATTACHMENT 1 [XI Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions, Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E _...... _ ................ ._. __m_________._ ........._ ----- . .................. m ......._ —.., CONFLICT OF INTEREST UESTIONNAIRE' - FORM CI For vendor° or othe on (loin, business with local Bove rinneutttl ciltit This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 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 w i with local governmental entity. ij Check this box if you are filing an update to a pre 2 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 oddlinally filed ttw tionnai're becomeitrcw prt. lette or inaeererrata. 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 sections AND ry, the taxable income is not received from the local governmental entity? AN El Yes I No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? E Yes E No D. Describe each affiliation or business relationship. a .... - ..... have no file of Interest to disclose. Signature, of person doing business with the governmental entity Date File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Associated Supply Co., Inc. Euless,: Texas Item Delivery /Pickup N UOM Product Description Make /Model offered Weekly Rental Montly Rental Charge SECTION A - DOZERS 1 EA ',Donor, Cat D10T or ergauvatlent 2 EA C9oa +r, Cat D9T or equivaalrant 3 EA Dozer, Cat DBT or erluivaleni EA Dozer, Cat D7T or egratvaleO 5 EA Dozer, LGP Cat D7R or equlvaatett .,.. 6WEA Dozer, Cat D6R or o taivalant 7 EA Dtazor, LGP Cat D6R or eq ulvatent _.. -- 8 EA 'Dazet Cat D61K or equivalent 9 EA Omer, Cat D5M or e9rtivaiea 10EA...m - -- dl . Cat DSK o�erC._� orw:rgOvalent �- 11 EA Dozer, LGP Cat D5K or equivalent 12 EA @aozalr, Cat D4K or equrvMent ._ ........... 13 EADozer„ LGP Cat D4K or esLarBvalelaC SECTION B - WHEEL LOADERS 14 EA Whf aal Iawader, Cat 988!:!-or 0 LAIvateni 15 EA Who od Loader, Cat 980H or c aptvaif r k 16 EA 4'a WeI I.oaakrr Aid 965K or e k fivatenl 17 EA VWFheelJ Loader Cat 962K Or rtrr)a.rly atelrt 18 EA mm OH or equivalent Wdxartt Loader Cat 95 19 EA Wheel Loader, Cat 938H or ecpativaalend 20 EA oa rat '.rJ'�...t� a ,. 0 f egvlvaleaool Loader C"at 21 L EA 'VVheed Loader. Cat 924H or ec asivaBnnq SE'CT'ION C- MOTOR GRADERS 22 EA Motor Grader Cat 12M or equrvaWil 23 Moa Gr.uel a Coat 1'4 a uivalont SECTION D- EXCAVATORS 24 1 EA Excavaim, Cat 345DL or o t l ra9ent 25 EA Fxc ovadcrr, Cat 336DL or t'quiykaleni n...... 26 EA ,..,..,.,.._ F xckvatdN 'q 3:a Or vaLi. d ..,.�. -.... ,.._...,..__...�..�......_ 27 EA E xc avatoa, t nd 32915 or edqut valenl w /Gra p ate 28 EA Excavator, Cat 324E or e qaaiwaland 29 EA Excavator, Cat 320 or et uivnl arrt 30 EA Excavator, Cyst 32ODL or r gOvalent w /GtaE:r )1e 31 EA aker 1 5t70 f1 ldF a t a+ ,Cat 312D Tmm� www Excavator with h r1r�Iallc bre� ......w...�,�... 32 EA Excavator, with hydraulic breaker 3,000 (11 Ib) class, Cat 320DL 33 EA with to drau1c breaker 5,000 1t 10) class, Cat ,121 Dt ...._� Fnx�- �wttet, � � �... 34 EA Excavator, Cal, 120 with zero laldstatrt or asqw.rMMent. Cat 320D SECTION E- SOIL SCREENERS 35 EA Soil Screener, T erox/Fmle .m _ aslea7l • ?4dEa "- 114" screen r"7d1 or oc uav w... 6 EA Soft Sic roener ferrrx/Pa'lnedy 790 or egtpdv;alent • ,W - 1/4 p crrlen SECTION IF -TRUCKS (OFF ROAD) ]37 EA Ora ck O1M Ra�ad , Cat 725 or at12ivalent wn °k, Olf {doaad Cat 730 or QquIvatent uck, ttf1- tloacl�, Cat 740 or ectr ivalenf :aECTdON G- SCRAPERS 40 V Ffa OC rzarnm,r {',wa p`�.ea5 r• »r a Fsrnaa..rctin 41 FA Scraper, Cat 621G orc, Valenl 42 EA Stxajx�r, Cat 615C of uivatont ... . ....... ........................... IT FA . . . . ......... SECTION H-TRACK LOADERS 44 EA Track E o or equNkilent 45 EA I pwif V t d aalaar, f aki 963D or rnaLuaivalenf 46 EA I iack Lmidw, Cat 953D or qtuivalent SECTION I- COMPACTORS . ............... 47 EA ..... ........ ..... . ......... . 8 EA C 1 —4.. Ij I!j og e( kjvc,�eglt — --- — ----- — 49 EA et ,or viv n 50 EA Ccxru actor, Cat CS56 g UL 51 EA 3 0 to 9_rj iV_4! nt_ EA SECTION J - WATER WAGONS (OFF-ROAD) T53 LA VWnfcr ti1+ac�af�tJPf 6ioaad� Cat 613 or t r)atuvacmr�t 54 EA Water WaesrCfff ttnatd), Cat 725 or asgariv alfant SECTION K - WATER TRUCKS (ON-ROAD): Must be TxDOT Approved with Lim . . . ......... 55 Na1Y r laarrk 2�000 al. M - l mc 56 � EA (on'lloal% 3,750 or 4 04 Offal SECTION L - MIXERS/RECYCLERS 57 EA 58 EA MiM'1j clEler, CIVII 325 or 9 hqllo!vt 59 EA SECTION M - ASPHALT-LAY DOWN MACHINE EA 15 ft. ...... . . .... SECTION N - ASPHALT ROLLERS 61 1 EA A�:RLI�69 ton 62 Holler, 12 ton SECTION 0 - ASPHALT MILLING MACHINES ........ . .... 63 EA �q_alimil! Lg-Mad.line, 4 ft. head 64 EA]pNpaltyiljt9q_Macl iJne, 6 ft. I mad SECTION P - BROOM 5 EA ock RJ350 Brown or equNalent 6 . ...... . ..... .... . . . ....... . . 65a EA 0 2on; Addilknal cost for r boom attachment SECTION 0 - DUMP TRUCK (ON-ROAD): Must be TxDOT AI)proved with Licensc EA Yard —.1 [qq!qL��y I .......... SECTION R - BACKHOES 67 EA Rackhov, CasH.580iq r -f) !�p lass A . � c- 68 EA bwPloe, Case r or trjw0eM - I 00hp dmg _§29!�2r or Options added to Backhoe bEISE1 DfiCO: 17-68 EA Additiom-,il cost for cab wOr air cot 17 (,g�: EA Addjfiom.Acos� fix,l,wheel drive 07,E EA Add&nat cost to ,Xl T _i f. L SECTION S - SKIDSTEERS 69 FA Skidsteep, Cat 2168 or r9 °+ 69a EA 0 Efin n Addifionall cost for tracks : 70 EA ,l,'AJdsleer,, Cat 2268 ar—st—lu Lva!eot 71 EA Skid leer Cat 2368 010 72 EA ,,Skidsteei, Cat 246C or C�qwvalcmt SkWslow, Cat 256C or etp,Avalord S Wdsim i, Cal 262C or iv I e III Skidsteer, Cat 272C or equivalont EXHIBIT 3 EXHIBIT F EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND B &R EQUIPMENT COMPANY (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between B &R EQUIPMENT COMPANY a corporation, whose address is 3100 KELLER HICKS RD, FT WORTH, TX 76244, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5639 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY :• File # 5639 Title: c<VIP7 02 1s/- ff'A -do S' • PHONE NUMBER . RE" ,I9. CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $750,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File 4 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File 4 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non- conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non- conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 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 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at 1lpa drvww ,dal,ov�whlcn���,ls�lb��.lii� and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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. 01 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $600,000 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.. File 4 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 EXHIBIT 3 /_11 ACID]:I�il=1k,kaI [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions:; Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E - ----i---- --i---- — - . ....... 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. 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 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. - ----- . — ......... jjikarne of person who has -a-16-u-iii-n --- e--s--s--r-e--Iati--o-'-n--s--hip with local governmental - e . ntity ................ 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 71h business day.after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? El- Yes F--] No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 1=1 Yes = No D. Describe each affiliation or business relationship. . ............... -4j 1 have no Conflict of Interest disclose. 51 ign person doing business with the governmental entity Date .......................... File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT B &R Equipment Company Ft. Worth, TX Item # uoM Product Description Make /Model offered Weekly Rental Montly Rental Delivery/Pickup Charge SECTION A - DOZERS 1 EA Dozer, Cat D10T or equivalent 2 EA ,Dozer, Cat D9T or equivalent 3 EA Dozer, Cat D8T or equivalent CAT D8T, D8R $ 4,500.00 $ 13,500.00 $1960 One time fee 4 �5... _ EA ' Dozer, Cat D7T or equivalent EA Dozer, L.. GP Cat D7R or equivalent EA Dozer, Cat D6R or equivalent 7 EA Dozer, LGP Cat D6R or equivalent 8 EA Dozer, Cat D6K or equivalent CAT D6K, D6N $ 1.833.00 $ 5,500.00 j $900 one time fee 9 EA Dozer, Cat D5M or equivalent 10 EA • Dozer, Cat D5K or equivalent ........................................................... ............................... i.... EAmm Dozer, LGP Cat DSK or equivalent 12 EA (Dozer, Cat D4K or equivalent 13 EA ''Dozer, LGP Cat D4K or equivalent SECTION ......... B ....................................................................................................................................................................... - WHEEL LOADERS ww............ .....-- www ----- -- 14 EA.._ Wheel Loader, Cat 988H or equivalent 15 EA Wheel Loader, Cat 980H or equivalent _ ,... 16 EA Wheel Loader„ Cat 966K ore equivalent ....... .._. -. ....._..G ---- ....---- - - - --. __ CAT 966H $ 2 333 00 $ 7 000 00 ....... ......... $900 One time fee -______ ______– 17 EA Wheel . Loader Cat 962K or eq .. .. .... uivalent 18 EA Wheel Loader, Cat 950H or a uivalent 19 EA Wheel Loader, Cat 938H orequivalent 20 EA Wheel Loader. Cat 930H or equivalent ..... 21 _ ._. EA Wheel Loader Cat 924H or equvalent SECTION C- MOTOR GRADERS 22 EA Motor Grader, Cat 12M or equivalent 23 EA Motor Grader, Cat 140M ore equivalent q CAT 140H, 160H $ 1 667.00 � $ 5,000.00 _ One time fee $900 .. mmmmmww .. SECTION D- EXCAVATORS 24 .. EA Excavator, Cat 345DL ore uvalent ._.... 9 i � ................ ........ .... —._ 25 EA Excavator, Cat 336DL ar equivalent .... ......... .............,. 26..........EA..... Excavator. Cat 325 orequivalent DOOSAN DX300 $ 1,833.00 ' $ 5,500.00 $900 One time fee 27 EA Excavator, Cat 329E or equivalent w /Grapple 28 EA ',Excavator, Cat 324E or equivalent CAT 324D $ 1,667,00 5 5,000.00 $900 One time fee 29 EA Excavator, Cat 320 or equivalent 30 EA Excavator, Cat 320DL orequivalent w /Gray, le 31 EA ator with hydraullc breaker 1.500 (f4 lb) class. Cat 312D 32 EA .... Excavator with hydraulic breaker 3m000 (ft lb) class, Cat 320DL 33m EA.._ Excavator, with hydraulic breaker 5,000 (ft lb) class, Cat 320DL 34 EA Excavator, Cat 320 with zero tailspin or equivalent, Cat 320D 'SECTION E- SOIL SCREENERS iSoil �- 35 EA Screener, Terex/Fmley 770 or equivalent 3/8 1/4 screen 36 EA ISoll Screener, Terex/FineIX790 or equivalent 3/8 1/4 screen SECTION F - TRUCKS (OFF ROAD) 37 EA Truck, (Off - Road), Cat 725 or a uivalent 36 EA Truck (Off- Road), Cat 730 or equivalent - 39 EA Truck. (Off- Road), Cat 740 or equivalent CAT 740. VOLVO A40. JD400 $ 3,000 00 $ 9,000.00 $1200 one time fee _ww SECTION G- SCRAPERS Sa r _ e ,Ct 623G or ry alent CA1623G 4 333 $ 13,000.00 $960 One time fee EXHIBIT 3 EXHIBIT F 41 EA Scraper. Cat 621G orequivalent 42 EA Scra er, Cat 615C ore uivalent wvvvmwwwww F. .. www�. .... 43 EA Scraper, Cat 613G or equivalent L ... ... ... ................ ... ... ... ... ......... ... ... . . . . ........................ SECTION H -TRACK LOADERS 44 EA equivalent Track Loader Cat 973D or m„ 45 J EA Track Loader Cat 963D or equvalent CAT 963C $ 2 000 00 $ 6,000.00 $900 one time fee m. _- ..._..... ......... 46 EA Track Loader. Cat 953D or equivalent SECTIONI- COMPACTORS 47 EA Compactor, Cat 825 orequivalent EA Co clor, Cal 815E or equivalent 48 m a 49 EA Compactor, Cat CP56 or equivalent 50 EA Compactor, Cat CS56 or equivalent 51 EA Compactor, Cat CP -323 -C or equivalent 52 EA Wacker Trench Roller. RT5620 or equivalent with 22 "drum _... ........ SECTION J - WATER WAGONS (OFF -ROAD) 54 EA Water Wagon, (Off Road), Cat 613 25 or equivalent .......... ..........._ ............... .... CAT 613 5000 GALLON $ 1 500 00 $ . mm 4m500.00 $900 one eime fee SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with License Plates and Tags 55 EA Water Truck (On- Road), 2,000 gal. .......... 56 EA !Water Truck (On- Road), 3,750 or 4,000 dal w SECTION L - MIXERS /RECYCLERS 57 EA Bo l 'Mixer /Rec cer. ma 100�� � one R or equivalent 58 EA Mixer /Recycler, CMI 325 or equivalent 59 EA Mixer /Recycler. CMI 500 or equivalent SECTION M - ASPHALT -LAY DOWN MACHINE . . ........... - � �-w ..�.._........�....� 60 EA.... Asphalt La)r DownmMachme, 8ft. - 15 ft SECTION N - ASPHALT ROLLERS ... .......... 61 EA Asphalt Roller, 9 ton ... 62 EA.. Asphalt Roller, 12 ton SECTION O - ASPHALT MILLING MACHINES 63 EA Asphalt Milling Machine, 4 I head 64 EA As halt Milling Machine. 6 ft. head ...................... SECTION P - BROOM 65a ��rmk_��.35 on Adddiona lcostfor uttn65 0 Broom ore uivale t gutter boom attachment SECTION Q - DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with License Plates and Tags 66 1 EA Dump Truck, 12 Yard SECTION R - BACKHOES 7 EAm ....... equivalent 85hp class ..... 68 Backhoe Case 590N or equivalent valent 100hp class � Options added to Backhoe base price: 17-681 EA Additional cost for cab with air conditioning a7 -68' EA Additional cost for 4 -wheel drive 37 -68 EA Additional cost for extendadi cow-,. ... _...._ ..............m__ � w� SECTION S - SKIDSTEERS ... ............ _..... _............. 69 EA Skidsteer, Cat 216B orequivalent 69a EA Option: Additional cost for tracks 70 EA Skidsteer, Cat 2268 or equivalent 71 EA Skidsteer, Cat 236B or equivalent ................ u' 72 EA Skidsteer, Cat 246C ore equivalent EA Skidsteer, Cat 256C or equivalent 79 ....__ 74 EA Skidsteer, Cat 262C or equivalent 75 EA Skidsteer, Cat 272C or equivalent EXHIBIT 3 CERTIFICATE OF LIABILITY INSURANCE 1 °A o 5 ...1/29/201 (MM /DD/YYYY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Hollie O'Steen Kinnaird, Rossander & PerryAgencylnc NHOEr FAx .......... 104 N. Lamar WA ct app, FXe)I (254) 629.3933 (A+C, No). (254) 629 -1165 E-MAIL hollieosteen sbc lobal.net PO Box 351 ADDRESS: �° 9 Eastland, TX 76448 _. _ INSUR- $),AFFORDING COVERAGE ......... ............. ------------ _ NPJC M ....... INSURCRA: MAXUM INDEMNITY COMPANY A0158 ...... ... _ _______ 9 ®.,, .,........., , ®.e., ... _._ e.......................... ........ . INSURED Southlake Equipment Company, Inc, INSURER B: AMERICA FIRST A0092 dba B &R Eq ui ment Company, Inc. _ .. —.,.. .. ... ... .... ......... ....... INSURERC: TEXAS MUTUAL ._ INSURANCE COMPANY 3100 Keller Hide Rd ® - -, „® ..... ...................... - Ft Worth, TX 76244 INSURER D INSURER E INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: ........_W_. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE „ '" MI WVD INTSRR AooL $GSet' POLICY MM800fYYYY MM4i1CSlY'YYM LIMITS A GENERAL uAewrY GLP6019919-03 08/0612014 08/06/2015 EACH OCCURRENCE $ 1,000,000 DAhu 't7I1 =IVPC ..................... _.. C_ OMMERCIAL GENERAL LIABILITY e r 5.0 ,990 _.. 6 REMd 3L [Ea �accu�ruii�co)„ $ CLAIMS -MADE � . � OCCUR MED W (Any o...n.. e perseo. n) „ EXCLUDED ._...... .... PERSONAL & ADV IRMY $ 1,000,000 .., GENERAL AGGREGATE $ 2,000,000 GLNI..AOErR'EGA'TEUMrTAPPLESPER PRODUCTS $ 2,000,000 _ � II LICY ..,�.0t. 4 LOC ... ._ $ -_... _ AUTOMOBILE LIABILITY CPUBRIED 5INGI E Limp, -� AE ANY AUTO BODILY INJURY (Per person) $ ALL OWNED BODILY....,,,,®,.., ...... _... ............._. LED AUTOS INJURY (Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAhN1G!U $ HREDAUTOS AUTOS (Peraccident) ..... ,,... $ A unneRELLAUAe ` 4��,CVTx EXC6019921 -03 08/06/2014 08/06/2015 EACH OCCURRENCE $ 3,000,000 .. EXCESS UAB CLAIMS -MADE AGGREGATE $ 3,000,000 . DED I/ RETENTION $ ® .._.. _. _._ $ ... _..... ... C AND EMPLOYERS' LIABILITY Y r N TSF- 0001082558 9/12/14 9/12/15 WC sTATTG `�I o mli OFFICE OPRIE7 PIPAR UD /EXECUTIVE N I N/ A E L. E 'TORY H �)MEIDEN VY k Y ta .... _ WORKERS COMPENSATION EACH ACCIDENT $ 1,000,000 (Mandatory In NH) E L DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under _ ............._. ................_ ....._....... _.. ,.. _DESC_RIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 B lnland Marine IM8928196 _.... 11/01/2014 -mm 11/01/2015 Owned equipment- per schedule Leased/rented Equipment - $500,000 agg DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) CERTIFICATE HOLDER CANCELLATION Fax#. (940) 293 -1837 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Cityof Denton THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 901 B Texas Street ACCORDANCE WITH THE POLICY PROVISIONS. Denton, TX 76209 AUTHORIZED REPRESENTATIVE � ,,�• °.�)... ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BANE MACHINERY, INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between BANE MACHINERY, INC. a corporation, whose address is 10505 N. FREEWAY, FT. WORTH, TX 76177, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit `B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File 4 5639 EXHIBIT 3 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 MM File # 5639 CONTRACTOR BY: _ AUTHORIZED SIGNATURE Date: Name: IF . .......� °��« `..�..._ _.�... Title; PHONE NUMBER � " ... EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $600,000. Pricing shall be per Exhibit F 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. 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhihit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File 4 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File 4 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File 4 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File 4 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File 4 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File 4 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File 4 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File 4 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File 4 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File 4 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File 4 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File 4 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File 4 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File 4 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File 4 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File 4 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - IOd) 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 File 4 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File 4 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File 4 5639 EXHIBIT 3 Exhibit D 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. File 4 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File 4 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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. File 4 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File 4 5639 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. E. The contractor shall obtain from each person providing services on a project, File 4 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File 4 5639 EXHIBIT 3 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. 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. File 4 5639 EXHIBIT 3 Exhibit E 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. 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 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 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 7th 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 tiler 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 tiler of the questionnaire? Yes E-1 No B. Is the tiler of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes E-1 No C. Is the tiler of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes E-1 No D. Describe each affiliation or business relationship. 4 ❑I have no Conflict of Interest to disclose. 5 Signature of person doing business with the governmental entity Date File 4 5639 RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Item uoM Product Description )N A - DOZERS EA Dozer, Cat D10T or equivalent EA Dozer, Cat D9T or equivalent EA Dozer, Cat D8T or equivalent EA Dozer, Cat D7T or equivalent EA Dozer, LGP Cat D7R or equivalent EA Dozer, Cat D6R or equivalent EA Dozer, LGP Cat D6R orequivalent EA Dozer, Cat D6K or equivalent EA Dozer, Cat D5M or equivalent EA Dozer, Cat D5K or equivalent EA Dozer, LGP Cat D5K or equivalent EA Dozer, Cat D4K or equivalent EA I Dozer, LGP Cat D4K or equivalent )N B - WHEEL LOADERS EA Wheel Loader, Cat 988H or equivalent EA Wheel Loader, Cat 980H or equivalent EA Wheel Loader, Cat 966K or equivalent EA Wheel Loader, Cat 962K or equivalent EA Wheel Loader, Cat 950H or equivalent EA Wheel Loader, Cat 938H or equivalent EA Wheel Loader, Cat 930H or equivalent EA Wheel Loader, Cat 924H or equivalent )N C- MOTOR GRADERS EA Motor Grader, Cat 12M or equivalent EA Motor Grader, Cat 140M or equivalent )N D- EXCAVATORS EA Excavator, Cat 345DL or equivalent EA Excavator, Cat 336DL or equivalent EA Excavator, Cat 325 or equivalent EA Excavator, Cat 329E or equivalent w /Grapple EA Excavator, Cat 324E or equivalent EA Excavator, Cat 320 or equivalent EA Excavator, Cat 320DL or equivalent w /Grapple EA Excavator, with hydraulic breaker 1,500 (ft lb) class, Cat 312D EA Excavator, with hydraulic breaker 3,000 (ft lb) class, Cat 320DL EA Excavator, with hydraulic breaker 5,000 (ft lb) class, Cat 320DL EA Excavator, Cat 320 with zero tailspin or equivalent, Cat 320D )N E- SOIL SCREENERS EA Soil Screener, Terex/Finley 770 or equivalent - 3/8" - 1/4" screen EA Soil Screener, Terex/Finely 790 or equivalent - 3/8" - 1/4" screen )N F - TRUCKS (OFF ROAD) EA Truck, (Off- Road), Cat 725 or equivalent EA Truck, (Off- Road), Cat 730 or equivalent EA Truck, (Off- Road), Cat 740 or equivalent )N G- SCRAPERS EA Scraper. Cat 623G or equivalent EXHM4F' 3 Bane Machinery, Inc. Ft. Worth, TX Make /Model offered Weekly Rental I Merrily Rental I Delivery /Pickup Charge Cat D6T I $ 2.850.00 1 $ 8.500.00 1 $ 600.00 Kawasaki 85Z $ 2,350.00 $ 7,000.00 $600 each way Kawasaki 70Z $ 1,500.00 $ 4,500.00 $300 each way Kobelco SK140 w/ Atlas AR95 $ 2,500.00 $ 7,500.00 $300 each way Linkbelt 300X3 $ 2,175.00 $ 6,500.00 $300 each way Kobelco SK140 w/ Atlas AR95 $ 2,500.00 $ 7,500.00 $300 each way Kobelco SK210 / LBX 210X3 w/ AR130 $ 2,675.00 $ 8,000.00 $300 each way Kobelco SK210 / LBX 210X3 w/ AR140 $ 2,850.00 $ 8,500.00 $300 each way EXHM4F' 3 EA Scraper, Cat 621G or equivalent EA Scraper, Cat 615C or equivalent EA Scraper, Cat 613G or equivalent �N H -TRACK LOADERS EA Track Loader, Cat 973D or equivalent EA Track Loader, Cat 963D or equivalent EA Track Loader, Cat 953D or equivalent ,N I- COMPACTORS EA Compactor, Cat 825 or equivalent EA Compactor, Cat 815F or equivalent EA Compactor, Cat CP56 or equivalent EA Compactor, Cat CS56 or equivalent EA Compactor, Cat CP -323 -C or equivalent EA Wacker Trench Roller, RT5620 or equivalent with 22" drum ,N J - WATER WAGONS (OFF -ROAD) EA Water Wagon, (Off- Road), Cat 613 or equivalent EA Water Wagon, (Off- Road), Cat 725 or equivalent �N K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Licei EA Water Truck (On- Road), 2,000 gal. EA I Water Truck (On- Road), 3,750 or 4,000 gal. ,N L - MIXERS /RECYCLERS EA Mixer /Recycler, Bomag 100R or equivalent EA Mixer /Recycler, CMI 325 or equivalent EA Mixer /Recycler, CMI 500 or equivalent ,N M - ASPHALT -LAY DOWN MACHINE EA Asphalt - Lay Down Machine, 8ft. - 15 ft. ,N N - ASPHALT ROLLERS EA Asphalt Roller, 9 ton EA Asphalt Roller, 12 ton ,N O - ASPHALT MILLING MACHINES EA Asphalt Milling Machine, 4 ft. head EA Asphalt Milling Machine, 6 ft. head ,N P - BROOM EA Brock RJ350 Broom or equivalent EA Option: Additional cost for gutter boom attachment ,N Q - DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with License EA Dump Truck, 12 Yard ,N R - BACKHOES EA Backhoe, Case 580N or equivalent - 85hp class EA Backhoe, Case 590N or equivalent - 100hp class Options added to Backhoe base price: EA Additional cost for cab with air conditioning EA Additional cost for 4 -wheel drive EA jAdditional cost for extendadig �N S - SKIDSTEERS EA Skidsteer, Cat 216B or equivalent EA Option: Additional cost for tracks EA Skidsteer, Cat 226B or equivalent EA Skidsteer, Cat 236B or equivalent EA Skidsteer, Cat 246C or equivalent EA Skidsteer, Cat 256C or equivalent EA Skidsteer, Cat 262C or equivalent EA Skidsteer, Cat 272C or equivalent EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BLUE LINE RENTAL (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between BLUE LINE RENTAL a corporation, whose address is 1410 N. MCDONALD ST., MCKINNEY, TX 75071, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5639 EXHIBIT 3 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 F-0-19 M File # 5639 BY: 4A--4401 AUTHORIZED SIGNATURE V ' Naine: 1"z)'b1z9' Son-ak Titles �'aa soht.'s 4?c;> eo by. aon�ERX-0- 84 a tl-rwo- Remme. ea.41 EMAIL ADDRESS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $150,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 fling 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File 4 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of I% or greater. If an overpayment of I% 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. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non- conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. . 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File 4 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. 'End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd /contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. REP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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: IN 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required„ If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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. File # 5639 EXHIBIT 3 Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 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. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File 4 5639 EXHIBIT 3 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 entities 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. File # 5639 EXHIBIT 3 Exhibit E . .. ....... CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other erson doing business with local overnmental entit This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 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 relationshi p—w—it—hI oca-1governmental entity. — — ------ --- . . ...... ......... . . . ..... . .... . Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 71h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, 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? EJ Yes E]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? [—I Yes I--] No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes 1-1 No D. Describe each affiliation or business relationship. :4 1 have no Conflict of Interest to disclose. . ... ................................... . ............................. . . . .............. ....................... . ......... .... . ........................ . ........... ......................... 5 Signatura �Onerson (kimg business with the governmental entity Date File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Blue Line Rental Woodlands, TX ,- item UOM Product Description Make /Model offered Weekly Rental Montly Rental Delivery/Pickup p Charge SECTION A - DOZERS i EA Cat D10T or equivalent mm EA loom, Cat D9T or equivalent 3 EA .. Dozer, Cat_D8T or equivalent 4 EA Dozer, Cat D7T or egaalvalenC 5 EA Dozer, LGP Cat D7R or equ'ival'ent .,. ...... 6 EA Do,tor, Cat D6R or etluly alent 7 EA DozermLGP Cat D6R ore ui..... , equivalent 8 EA Dozw, Cat D6K or equivalent _ EA _ Dozer. Cat D5M or equNMent 10 EA ''Doare,r, Cat D5K or eguivaieril. 11 EA Dozer„ LGP Cat D5K or equivalent 12 EA Dozer, Cat D4K or equivalent 13 EA Dozer, LGP Cat D4K or equivalent SECTION B -WHEEL LOADERS EA lerul Loadoa Cat 968H or equivaloM 15 EA ,w. ie t Meal L,craa9eu- Cat 980H or o�uivd�.....a.d..... 16 EA VW'ieell L oader, Cat 966K or equivalent 17 EA Wheoq L,oadw, Cat 962K or equiyape d 18 EA Wka�el i oadenCat 950H or IvaPenl 19 EA VWiaaae[ Loader„ Cat 938H or e ulwraient 20 EA Aheaf Loader, Cat 930H or o u(vakea�f 21 EA Wieel Loader, Cat 924H ore 4nvalenq mm SECTIWON C- MOTOR GRADERS 22. JEA pvlotor 'ralerCatl2Morrtluivauurap 23 EAmm Motor G.. at t � coder, Cat 140M or equivalent SECTION D- EXCAVATORS 24 EA xcavator L iva gaan ? _..- :.Catm345 or .-- D... - a�i .) u...- .- ........ .. ...... 25 EA Excavator Cat 336DL or equivalent 26 EA Excavator Cat 325 or equivalent 27 EA Excavator Cat 329E or_eguiyaienl wfG 28 EA Excavator. Cal 324E or equivalent 29 EA Excavator, Cat 320 or equivalent 30 EA ��a6 FXOava #or, Cat 320DL or vruiertl h 31 EA Excavaior, with hydraulic breaker 1,500 32 Excavator, with hdraulf2 breaker 3 tD0Q7 33 JEA i 5,000Excavator, with it dr�aulia breaker 0 34 I. xaa,vmnpop, Cal 320 with zero tailspin or SECTION E- SOIL SCREENERS 35 EA.w _ _ Scuff Screen er TereX/L iutie)i 770 or a n tut 36 EA Soil S'rraaner q "areXgkisaa4y 790 or ogwN SECTION F -TRUCKS (OFF ROAD) 37 EA q ruck t2gq Ro aeY', Cat 725 �� H ( j or 38 EA at 730 or equivttaleni Truck (Off -Road), Cat �.._..�... 39 EA truck (Off-Road), Cat 740 or equivalent SECTION G- SCRAPERS 40 1 EA ISc,raver. Cat 623G or em4vapent Cat 312D Cat320DL Cat320DL Cat 320D Ienl 3/8' m 1/4" screen lent -3J " 114' soreell 6930 - 14' blade 1 $ 3.070,00 I S 9.200.00 1 $.250 Onetime fee 41 EA Ismim, d" tid 6210., or cquwyalent 42 EA Saara er, C 1615C ore uGvalent 43 1 EA Srrapw:t' Cat 613G or ocquavalaxnt SECTION H -TRACK LOADERS 44 EA I rack. Loader, Cat 9730 or equivadonl 45 EA ....._... a 963Dorer(uivalend .'__, Ira I oarler Cat ....� - ....... 46 EA Track Loader, Cat 953D or egUivadant SECTION I- COMPACTORS 47 EA Compactor Cat 825 orequivalent �mm� 48 EA Compatior, Cat 815F or etgtnv alert 49 EAmm Corn)rourr„tor, Cat CP56 or e udvalermmat� 50 EA Corn naclsor Cal CS56 or e takvalenl 51 EA Comp actor Cat CP 323 -C or er)tiwlvalenl 52 EA Wacker Trench Role, or erpi wdvala ual with 22 drum SECTION J -WATER WAGONS (OFF -ROAD) 53 EA Water Wagon, (Off- Roatl), Cat 613 or eaqudvaleatl. 54 EA Water Wagon, (Off - Road), Cat 725 or equivalent SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Lim EEA ruck (Orro Read) ,u 010 Baal 55 Water T56 Water Truck (On- Road), 3,750 or 4,000 gal. SEC_ �............ TION L - MIXERSIRECYCLERS EA 100R or er uuvalcr f 57 Mlxew`fFaee rger B�un7ra a r 58 EA MlxetiRecy�cler, CMI 325 or equivalent 59 EA MdxerfRerr„ C'MlI 500 or carpawuvalont SECTION M - ASPHALT -LAY DOWN MACHINE EA Asphalt sy Down Maa h1_......8 ft.._._......... .. _--. �.... 60 ire„ . - 15 ft. SECTION N - ASPHALT ROLLERS 62 ASpfuall Roller, 12 _._._._._......._.. ,.. EA Raadlur, 9 Roar EA ton SECTION O -ASPHALT MILLING MACHINES . Asgnha4l fulllYl Mu �hunr 6 ft 631 EA As hall Mlllln Matihuna 4 ft head EA .head SECTION P - BROOM 65 Brock RJ350 f3roorn or equivalont 65a EA �C�p pon,:.Add.!l!ona�..cost for.9ugcer boom attachment SECTION Q - DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with License 66 Dearm frawcic 12 Yard SECTION R - BACKHOES 67 EA f3^uckhor«,Case 58- ON or equivalent 85hp class 68 EA E3ackhoe, Case 590N or equivalent - 100hp class O flans added to Beckhoe base arir,a 7 -68 EA Addgtdonad cost for cab with air cunditdohing ;7 -681 EA Addiflonal cost for 4,wheel drive 7.68 EA Addallonal cost for extend,adig SECTIONS.. . SKIDSTEERS ........................................_ �...._....... �........ ............................... .......,,,,_, -,,,,, � ...�. 69 EA ,kid teen, Cat 216B or eq uwalent 69a EA O port Additional cost for tra ks 70 EA Skidsdeer„ Cat 2266 or equivalent 71 EA Skidsmm Cat 2366 or etguuvalr nt w lv - 72 EA SkaclsCner, Cat 246C or e4(ariv r Iera .._ . 73 EA SRidsteer, Cat 256C or equivalent .w 74 EA Skdsteer, Cat 2620 or ea)ulwadrsnt 75 EA SMcsteer. Cat 272C or euulvadent EXHIBIT 3 EXHIBIT F EXHIBIT 3 "Ic` CERTIFICATE OF LIABILITY INSURANCE ®A 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. IMPCORTANT, 1f the certlflcate holder is an ADDITIONAL INSURED, the policy(Ies) must be endorsed. If SUBROGATION IS WANVID, subject to the terms and corldit.orrs of the policy" certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsomerlt(s). PRODUCER -- GO TACT Marsh USA IRC. NAME 1717 Arch Street PNONL – „ _ m° .FAX... ...._ ., ........ Philadelphia, PA 19103 -2797 &A S Ne Bxtt, .. _. .,,, ..... . . IA/c. Nor: 710470- BLR -GA WX -14 -15 INSURED BlueLine Rental, LLC 127 Walnut Bottom Road Shippensburg, PA 17257 FM National Liability & Fire Insurance Company- _' "' ......... ,,,,,,,....... Greenwich Insurance Company XL Insurance America, Inc. 24554 NAIC r/ COVERAGES CERTIFICATE NUMBER: CLE- 004195719 -01 REVISION NUMBER:2 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN„ THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. usrr JR TYPE OF INSURANCE �MBSDL�Ih�_. OMd+fINLCY YY MM�p��.CXr*,,,1 P 7LtlCY E� .,a °. _ POLICY NUMBER YYYY,)- LIMITS A GENERAL uaelurY 40 C4I.Cb 100147 fI1 — 3112014 01I31I2015 – X LACH OC( UIRRLNC E $ 1000,000 ( LIABILITY DAMkGW T R� N'('I "D "X MED EXP (Any on,a" onp $ 100,000 COMMERCIAL CLAIMS- MADEERAL OCCUR r f $ GEN'L AGGREGATE LIMIT APPLIES PER: B UTOMOv ILE LIABILITY t('`I. - B X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIREDAUTOS NON -OWNED AUTOS UMBRELLA LIAR IX � OCCUR EXCESS LIAB (,1 AIMS MADE. C WORKERS COMPENSATION .........._....... C AND EMPLOYERS' LIABILITY ANY r'' RORrIFYG ,7R�✓T'APar6WrRAwXf4CI),RJVE SIN O fIC;Llrtg4EMBEI';,E -x I'uDT, -k3'b C N� N/A fMandatary In NKI KAIA "JAJ7t16 5 (AOt ) RM)9437666 (MA) .4:3 UMO 100146 OI TWO 94Te445 (AOS)° RWR9435446 (WI) 01131/2014 01!31/2015 " 1 E L EACH Af.d fu`:G`6wgT $ E L LXSEASE, EA EMPi.OY_L $ 1 L,I. DISEASE r 1 �.._. �C7G.ICY LIMIT $ —VEHICLES �.-.......—,._....�.�..._�... - _ _. ..1 _... _.] _ DESCRIPTION OF OPERATIONS NLOCATIONS /VEHICLES (Attach ACORD'101, Additional Remarks Schedule, If more space Is required) The Certificate Holder Is Included as additional insured (except workers compensation) where required by contract. The General Liability is primary and non contributory over any existing insurance and limited to liability arising out of the operations of the named insured where required by contract. Waiver of Subrogation is applicable where required by contract. CERTIFICATE HOLDER CANCELLATION ATION City of Denton, its Officers, Agents, Employees and Volunteers SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 901 B Texas St. THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Denton, TX 76209 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee .......... _w ©1988 -2010 ACORD CORPORATION. All rights reserved, ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD „PERSONAL .......... & A DV YN Nq.IPRY $. ) 000 0 GEtJE RAL AGGREGATE $ 2,000,000 PR rh'$ oMP /L71 AC U. � ,.,. 2. 0 ,000,000 SIR $ 100,00 0 fd1YS1 /' 2014 01131 /201,66 -t IRINEra.�rNr t�LlMls I rI D Ana: ) $ 5,000,000 01/31/2014 01131/2015 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ P:I�()P R1 M DAMAGE $ Id acodur1q. 01/31/201''4 Cr113'1l2'( }15 EACH OCCURRENCE .,. $ 5000 „000 FAGGREGA1IrY $ 5,000,000 ".... 01131/2014 01!31/2015 " 1 E L EACH Af.d fu`:G`6wgT $ E L LXSEASE, EA EMPi.OY_L $ 1 L,I. DISEASE r 1 �.._. �C7G.ICY LIMIT $ —VEHICLES �.-.......—,._....�.�..._�... - _ _. ..1 _... _.] _ DESCRIPTION OF OPERATIONS NLOCATIONS /VEHICLES (Attach ACORD'101, Additional Remarks Schedule, If more space Is required) The Certificate Holder Is Included as additional insured (except workers compensation) where required by contract. The General Liability is primary and non contributory over any existing insurance and limited to liability arising out of the operations of the named insured where required by contract. Waiver of Subrogation is applicable where required by contract. CERTIFICATE HOLDER CANCELLATION ATION City of Denton, its Officers, Agents, Employees and Volunteers SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 901 B Texas St. THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Denton, TX 76209 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee .......... _w ©1988 -2010 ACORD CORPORATION. All rights reserved, ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND CLOSNER EQUIPMENT CO., INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between CLOSNER EQUIPMENT CO., INC. a corporation, whose address is 1819 LACY DR., FT. WORTH, TX 76177, 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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." File # 5639 EXHIBIT 3 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 - File # 5639 CON ORIZED SIGNATURE Date:. ..�' Name Title:_v......... 1 _. _ j 1'l10-'NF:; NUMBER _ - -- EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Dater EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $255,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. 'End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 1 O - IOd) 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at ,Jld,6 and at the Wage Determinations website .ww . d.g .,gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury, • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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. File # 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 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. E. The contractor shall obtain from each person providing services on a project, EXHIBIT 3 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. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E CONFLICT OF INTEREST QUESTIONNAIRE -FORM CIQ For vendor or other erson doing business with local governmental entity ._ ....................... ��_WWW ...... This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 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 wha h usiness rel la► tea with local grJVernmeratal entity, Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th 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 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes 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? ................ - Yes No D. Describe each affiliation or business relationship. 4 I have no Conflict of Interest to disclose. aid aau I� ro'saroI doolig lat nI s� wit I ,+ governimmud entity Date File # 5639 EXHIBIT 3 EXHIBIT F RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Closner Equipment Company, Inc. Ft. Worth, TX Item UDM Product Description Make /Model offered Weekly Rental Montly Rental Delivery /Pickup Charge SECTION A - DOZERS 1 EA Dozer„ Cat D10T or equlv�akint ......_......._..�._.......... _. ......_ ........................ 2 EA Dozer, Cat D9T or ualinvalent . ............................... 3_.........Ea..... .......EA.....�iDozer. Dozer, Cat D8T or egwvai east .............................. 4 Cat D7T or equNaulu�uak EA Dozer, LGP Cat D7R or e aquivolenl. 6 EA Dozer, Cat D6R or equivalent 7 EA Droner, LGP Cat D6R or eyuivalenl. 8 EA Dozer, Cat D6K or equivalent 9 ..,,,,. � .............................. EA Dozer, Cat D5M or ecluirw0ant .............................. 10 EA T.7a °sra "r,.. Cet. D. SK. or. uaugtatvapleaa�t 11 EA Dozen, LGP Cat D5K or equivalent X12 EA Dozer, Cat D4K or eagi.ovaleM 13 EA Dorty, LGP Cat D4K or rarluivalent w SECTION EL LOADERS B WHEEL L ..... ............................... 14 ..� ....... EP ..................................................................................... ............................... iWheel Loader, Cat 988H or r- ........... t,... i . 15 EA Wheel Loader, Cat 980H or eaquivaN'mi 16 EA ''Wheel Loader, Cat 966K or atqulvagenl' 17 EA Wheal I..onder t'at 96 _.2K DI e aiivala.ceal. � 18 EA Wheel Loader, Cat 950H ,or 1.9.. _...EA.... Wheel Loader, Cat 938H or �valent 20 EA Wheel Loader, Cat 930H or ecimvaleln 21 EA WhefA Loader, Cat 924H or e quovaleM SECTION C- MOTOR GRADERS 22 1 EEMotor Grader, Cat 12M ore uNV aleuig. ,,. q.. — 23 EGrader, Cat ly ad rryl._._._ SECTION D- EXCAVATORS ... .4- .....EA.... 2 ....... "EA_. _ W .............................................. ......................_..- Excavator, Cat 345DL or eflurlvWent -. 25 kxr: +ava � u .� a6ervl . tor, Cat 336DL or e uivua -rjnl ... 26 EA Excavator, Cat 325 or ealtilyalent 27 EA Excavator, Gat 329E or "ihvalenl MG 28 EA Lxu, aralor„ Cat 324E or e9uitva*it 29 EA E" (c iv aor Cal 320 nr e exlvalent 30 EA Lxcava!ator Cat 320DL or egmvalonl Wy' 31 .... ...._._._.. EA eaker 1,500 Lxr uvaatuu With lay�drraualdc br._..� 32 EA eaker 3 000 Lxrauviatviu °, withlA drxulinbr ......... ........ 33 EA Excavator, with h clrauk breaker 5,000 34 EA Excavator Cat 320 Wlth zero lails)alul or SECTION E- SOIL SCREENERS 35 EA SW Screener, Ter ex /Finlr k 7 "70 or egtjiv 86 EA Soil Screener Tare4F !ngl;y 790 or equly SECTION F . -...EA -TRUCKS (OFF ROAD) 37 EA ( , Cat 725 or eg uiv agaa... I "ruc::k, IDtPwFtoad,) u- 1 ul 38 EA I Iru ,_ (Off,Road), Cat 730 or erquwvaalenl 39 EA pft Road) Q at /40 aan" ecgmval'eral SECTION G- SCRAPERS 4.... .. Der. 0 EA Sq rae Cat 623G or eaulvagerat Cm 312D Cat 320DL Cat 320DL Cat 320D t - 318" -'1/41 screen t - 3/8" - 1/4" screen EXHIBIT 3 EXHIBIT F 41 EA '�. °. ?k,':ta . f eoh ta?7G era ar.�.tiaiv,�InR -A._., _ .......... 42 EA Scraper Cat 615C or ealuivalnral 43 EA Sa rypaea, Cat 613G or equivaleN _ ....... .. ...__ �.....,,. SECTION H -TRACK LOADERS 44 EA uaivraleal I rvra k Loader. Cat 97 3D or rn ,,... ..� 45 EA Track Loader. Cat 963D or ec wwilent 46 EA "irrscl Loader, Cat t153D rar e e6vafeaal SECTION I- COMPACTORS 47 EA C uaralaackar, Cat 825 or equiva Wnt 48 t" rasa as _._� equivalent EA ( tacr', Cat 615E or adqulvelenl 49 EA (ena�act'rar, Cat CP56 or equivafiqit 50 EA Compa;actor, Cat CS56 or ggou ahont _..._EA 1 w�.., 23- 'wL..Ew uBe:ra�t......_._ ---. ...... . - -_._ -51 r „onaa.acttu CatCP- 323- Cormnarrlv;. �� ..................................... ................ ........... m 52 EA Wackor 1 reach Roller, RI-5620 or eq UN4v lent with 22” drum SECTION J - WATER WAGONS (OFF-ROAD) 53 EA 54 EA ]Wal.r a ate r Wagon (Cali Roadtl . C.. ( p at ... 613 or eryuivWent Wagon, ) aY 725 or ar }uwaCnruY SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Llcer 55 EA "J nl r .d "ruck j[ n k o a l� J OLIO ril 56 EA WWalrar Truck ( 41( aa1 1750 or 4 000 rpaifl _.W_. ....... .._. .� ............. SECTION L - MIXERSIRECYCLERS 57 �lixtarlRaat Wr prar B ......... .... __..�, _ _,.�,.,._ �.�.. EA rna0 100R or er�l0yWenl, 58 EA fyll er /RecyrcWr, CMI 325 or equivalent 59 EA.._ Mixe0R'ecycger, CM] 500 or ec}uivtatont SECTION M - ASPHALT -LAY DOWN MACHINE _ Drown chine, Bft. - 15 ft 60 EA As h"'o Y.ra . SECTION N - ASPHALT ROLLERS A C 61 Apt rYpnNl, Roller, 9 ton 62 A ap 1, thl R0er, 12 ton EA _ ...w----------. SECTION O - ASPHALT MILLING MACHINES 83 Astala ultlIYIPN } Nd xtharrua o w . head 64 EA As7ty rttl Millis} Nlat:hine, 8 ft head SECTION P - BROOM ....... ' EA � IiS65 Broom or ert rvalenp 65a ;on Additional cost for Gtter boom attachment SECTION Q - DUMP TRUCK (OWROAD): Must be TxDOT Approved with Lhcensf 66 EA Crum[ T a k 12 Yard SECTION R - BACKHOES EA Backhoe, Case 58ON or erpca ivtaueant - 85hp class 68 EA Backhoe„ Case 59ON ore ulvKaWent • 400hp class f7 v &I.... -� t ons added to Bac*hae ba�ir,ra pyrlce 7-681 EA Additional cost for cab with air condiUonirrg 7 -68 EA Addllionet cost for 4 -Wheel drive 7 06 EA Additional cost for extnndadi.c SECTION S - SKIDSTEERS 69 EA akrsRor , Hr, Cat 21 . ....o.... _rva.t ..l.:.a_i aad.s ...n.0 . ................. ._.�....�._._ 69a EA 29Lj ar , Additional cost for tracks 70 EA Skralsteer, Cat 2268 or equlvalena 71 EA Sknd leer, Cat 236B or equivWerrt. 72 EA Skidsteea, Cal 2466 a r e uivatent 73 EA a"kOsteer, Cat 256C or eriuiWlent ... ......... ... ......... 74 EA lSkidsteer,Cart 212C ar erlu ival ant 75 Skidsteer, Cat 272C or e0uty, EA _._._. a1ran9 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HERTZ EQUIPMENT RENTAL CORPORATION (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between HERTZ EQUIPMENT RENTAL CORPORATION, whose address is 4637 W. UNIVERSITY DR., DENTON, TX 76207, 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 4 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit `B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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. T hese documents shall be referred to collectively as "Contract Documents." File 4 5639 EXHIBIT 3 IN WITNESS WHEREOF, the parties ♦ these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY M L FAIL it CONTRACTOR "'7 ell BY: . ...... �A- AUTHORIZED SIGNATURE Date: 01-23-15 Name: Jason Oosterbeek Title: Vice President RGIVA41414101 herebids@hertz.com EMAIL ADDRESS BY: GEORGE C. CAMPBELL, CITY MANAGER Mo EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $270,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhihit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on t he face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, a nd 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a p acking 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File 4 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File 4 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File 4 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File 4 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File 4 5639 EXHIBIT 3 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 1 ater than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File 4 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File 4 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a in aterial misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File 4 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File 4 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File 4 5639 EXHIBIT 3 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on a ny 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 1 ocation, 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 e ither 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File 4 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File 4 5639 EXHIBIT 3 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 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 s hall 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File 4 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File 4 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 am eeting 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 File 4 5639 EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File 4 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 pe rcent 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 s atisfactory 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. IOa - IOd) 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 File 4 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at hqp: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File 4 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File 4 5639 EXHIBIT 3 Exhibit D 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. File 4 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File 4 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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. File 4 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File 4 5639 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. E. The contractor shall obtain from each person providing services on a project, File 4 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File 4 5639 EXHIBIT 3 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. 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. File 4 5639 EXHIBIT 3 Exhibit E 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. 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 by Section 176.001(1 -a) with a 1 ocal g overnmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. Name of person who has a business relationship with local governmental entity. 2 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 7th 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 tiler 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 tiler of the questionnaire? Yes E-1 No B. Is the tiler of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes E-1 No C. Is the tiler of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes E-1 No D. Describe each affiliation or business relationship. 4 ❑I have no Conflict of Interest to disclose. 5 Signature of person doing business with the governmental entity Date File 4 5639 EXHM4F' 3 RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Hertz Equipment Rental Corporation tsomta �,prmgs, rL Item UOM Product Description Make /Model offered Weekly Rental Montly Rental Delivery /Pickup Charge SECTION A - DOZERS 1 EA Dozer, Cat D10T or equivalent 2 EA Dozer, Cat D9T or equivalent 3 EA Dozer, Cat D8T or equivalent 4 EA Dozer, Cat D7T or equivalent 5 EA Dozer, LGP Cat D7R or equivalent 6 EA Dozer, Cat D6R or equivalent Deere 650 $ 1,210.00 $ 3,255.00 $150.00 Each Way 7 EA Dozer, LGP Cat D6R or equivalent 8 EA Dozer, Cat D6K or equivalent 9 EA Dozer, Cat D5M or equivalent 10 EA Dozer, Cat D5K or equivalent 11 EA Dozer, LGP Cat D5K or equivalent 12 EA Dozer, Cat D4K or equivalent 13 EA Dozer, LGP Cat D4K or equivalent SECTION B - WHEEL LOADERS 14 EA Wheel Loader, Cat 988H or equivalent 15 EA Wheel Loader, Cat 980H or equivalent 16 EA Wheel Loader, Cat 966K or equivalent 17 EA Wheel Loader, Cat 962K or equivalent 18 EA Wheel Loader, Cat 950H or equivalent Deere 644 $ 2,110.00 $ 5,800.00 $99.00 each way 19 EA Wheel Loader, Cat 938H or equivalent 20 EA Wheel Loader, Cat 930H or equivalent Deere 544 $ 1,300.00 $ 3,950.00 $99.00 each way 21 EA Wheel Loader, Cat 924H or equivalent SECTION C- MOTOR GRADERS 22 EA Motor Grader, Cat 12M or equivalent 23 1 EA I Motor Grader, Cat 140M or equivalent SECTION D- EXCAVATORS 24 EA Excavator, Cat 345DL or equivalent Deere 350 $ 2,995.00 $ 8,400.00 $250.00 each way 25 EA Excavator, Cat 336DL or equivalent 26 EA Excavator, Cat 325 or equivalent 27 EA Excavator, Cat 329E or equivalent w /Grapple 28 EA Excavator, Cat 324E or equivalent 29 EA Excavator, Cat 320 or equivalent 30 EA Excavator, Cat 320DL or equivalent w /Grapple 31 EA Excavator, with hydraulic breaker 1,500 (ft lb) class, Cat 312D 32 EA Excavator, with hydraulic breaker 3,000 (ft lb) class, Cat 320DL 33 EA Excavator, with hydraulic breaker 5,000 (ft lb) class, Cat 320DL 34 EA Excavator, Cat 320 with zero tailspin or equivalent, Cat 320D SECTION E- SOIL SCREENERS 35 EA Soil Screener, Terex/Finley 770 or equivalent - 3/8" - 1/4" screen 36 1 EA Soil Screener, Terex/Finely 790 or equivalent - 3/8" - 1/4" screen SECTION F - TRUCKS (OFF ROAD) 37 EA Truck, (Off- Road), Cat 725 or equivalent 38 EA Truck, (Off- Road), Cat 730 or equivalent 39 EA I Truck, (Off- Road), Cat 740 or equivalent SECTION G- SCRAPERS 40 EA Scraper, Cat 623G or equivalent EA Scraper, Cat 621G or equivalent EA Scraper, Cat 615C or equivalent EA Scraper, Cat 613G or equivalent �N H -TRACK LOADERS EA Track Loader, Cat 973D or equip EA Track Loader, Cat 963D or equip EA Track Loader, Cat 953D or equie ,N I- COMPACTORS EXHM4F' 3 47 EA Compactor, Cat 825 or equivalent EA Water Wagon, (Off- Road), Cat 613 or equivalent 48 EA Compactor, Cat 815F or equivalent EA I Water Wagon, (Off- Road), Cat 725 or equivalent 49 EA Compactor, Cat CP56 or equivalent 55 EA Water Truck (On- Road), 2,000 gal. 50 EA Compactor, Cat CS56 or equivalent $99.00 each way 56 1 EA Water Truck (On- Road), 3,750 or 4,000 gal. 51 EA Compactor, Cat CP -323 -C or equivalent SECTION L - MIXERS /RECYCLERS 57 52 EA Wacker Trench Roller, RT5620 or equivalent with 22" drum 58 T SECTION J - WATER WAGONS (OFF -ROAD) 53 EA Water Wagon, (Off- Road), Cat 613 or equivalent 54 EA I Water Wagon, (Off- Road), Cat 725 or equivalent SECTION K - WATER TRUCKS (ON- ROAD): Must be TxDOT Approved with Licei 55 EA Water Truck (On- Road), 2,000 gal. Ford F750, 2000gal, CDL $ 795.00 $ 1,995.00 $99.00 each way 56 1 EA Water Truck (On- Road), 3,750 or 4,000 gal. SECTION L - MIXERS /RECYCLERS 57 EA Mixer /Recycler, Bomag 100R or equivalent 58 T EA Mixer /Recycler, CMI 325 or equivalent 59 EA Mixer /Recycler, CMI 500 or equivalent SECTION M - ASPHALT -LAY DOWN MACHINE 60 1 EA Asphalt - Lay Down Machine, 8ft. - 15 ft. SECTION N - ASPHALT ROLLERS 61 EA Asphalt Roller, 9 ton 62 1 EA Asphalt Roller, 12 ton SECTION O - ASPHALT MILLING MACHINES 63 EA Asphalt Milling Machine, 4 ft. head 64 1 EA Asphalt Milling Machine, 6 ft. head SECTION P - BROOM 65 EA Brock RJ350 Broom or equivalent 65a I EA Option: Additional cost for gutter boom attachment SECTION Q - DUMP TRUCK (ON- ROAD): Must be TxDOT Approved with License 66 EA Dump Truck, 12 Yard SECTION R - BACKHOES 67 EA Backhoe, Case 580N or equivalent - 85hp class 68 EA Backhoe, Case 590N or equivalent - 100hp class Options added to Backhoe base price: 7-68i EA Additional cost for cab with air conditioning 7-681 EA Additional cost for 4 -wheel drive 7 -68 EA Additional cost for extendadig SECTION S - SKIDSTEERS 69 EA Skidsteer, Cat 216B or equivalent Bobcat S510 $ 350.00 $ 925.00 $99.00 each way 69a EA Option: Additional cost for tracks 70 EA Skidsteer, Cat 226B or equivalent Bobcat S550 $ 350.00 $ 925.00 $99.00 each way 71 EA Skidsteer, Cat 236B or equivalent Bobcat S590 $ 395.00 $ 995.00 $99.00 each way 72 EA Skidsteer, Cat 246C or equivalent Bobcat S590 $ 395.00 $ 995.00 $99.00 each way 73 EA Skidsteer, Cat 256C or equivalent 74 EA Skidsteer, Cat 262C or equivalent 75 EA ISkidsteer, Cat 272C or equivalent EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND KIRBY SMITH MACHINERY, INC. (FILE 5639) THIS CONTRACT is made and entered into this day of A.D., 2015, by aaad between l . a l m1 Y M 11 ".1 l %�!1 .CJ JJ [1 1, Y, INC corporation, whose address is 1450 NE LOOP 1P 1 17"1' W ) °r TX 76I (1)6, here :rtat�ter referred to as "" ojitr-actr�r,�� and the CITY OF DENTON, TEXAS, a Borne n:11e r11uraicipd� l corporatioji, hercinafler referred to as "City," to be effective upon approval of the Denton City Council and sr.rbseilLrent 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 # 5639 Rental of Heavy 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); (f) Contractor's Proposal. (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 tw.'otitrtrct doe�rrracrits, the imoiisistency or conflict shall be resolved by giving precedence first to the written agreement there to the contract documents in the order in which they are listed above, '`l "hese daacurraents slaall be referred to collectively as "Contract Documents." File # 5639 EXHIBIT 3 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 IM File # 5639 CONTRA," "ISO , A ORIZED SIGNATURE Dater /� ../� .. _.... Name:o Title: PHONE NUMBER EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $150,000. P ricing shall be per Exhibit F 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. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. T he 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 annually 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 Cities 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. File 4 5639 EXHIBIT 3 Exhibit C 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 contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as 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 seller'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. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 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. 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. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor 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 Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to 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. File # 5639 EXHIBIT 3 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 Contractor'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 Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor 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 Contractor's obligations under the contract. The Contractor 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. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, 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. File # 5639 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor 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 Contractor 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 Contractor 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 Contractor, 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 Contractor 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 Contractor's obligations under this paragraph. Environmental Protection: The Respondent 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 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. File # 5639 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as 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 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 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. 14. 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. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5639 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. 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. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, 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 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. 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 File # 5639 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: 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. 19. 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 firm 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. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5639 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor 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 Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be 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 Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: 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 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5639 EXHIBIT 3 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. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is 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. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. 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 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All File # 5639 EXHIBIT 3 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled 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. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of 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. File # 5639 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. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. 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 Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5639 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. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City 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. 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 File # 5639 EXHIBIT 3 delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any 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. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential 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 File # 5639 EXHIBIT 3 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 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. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File # 5639 EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The 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 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 Contractor 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 Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. 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 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 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 of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5639 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor 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 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 File # 5639, EXHIBIT 3 may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, 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 File # 5639 EXHIBIT 3 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. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 1Od) 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 File # 5639 EXHIBIT 3 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 contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a 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. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance File # 5639 EXHIBIT 3 pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or 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 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 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. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFPBid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5639 EXHIBIT 3 Exhibit D 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. It 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. File # 5639 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, File # 5639 EXHIBIT 3 products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] 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. File # 5639 EXHIBIT 3 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This 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. File # 5639 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. E. The contractor shall obtain from each person providing services on a project, File # 5639 EXHIBIT 3 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: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on File # 5639 EXHIBIT 3 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. File # 5639 EXHIBIT 3 Exhibit E ........ ....... CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other Derson doin business with local governmental entity - --- .. _ .......... This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 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 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 entity. ' . .................... _.. ..........w_................... 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 7th business da after the date the originally filed questionnaire becomes incomplete or inaccurate. 3 Name of local government officer with whom filer has an einployntent or business relationship. Name of Officgi'1117 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 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? to '�I 1 Yes "Na'' 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? ._— jj 1 Yes No .� D. Describe each affiliation or business relationship. 4 LJ�t have no Conflict of Interest to disclose. . . ........... Signature of person doing business with the governmental entity Date File # 5639 Ekfftfift 3 RFP 5639 - Award Sheet for RENTAL OF HEAVY EQUIPMENT Kirby-Smith Machinery Dallas, TX Item UoM Product Description Make/Model offered Weekly Rental Montly Rental Delivery/Plckup # Charge I EA Dozer, Cat D10T or eqLuvalerA 2 EA Dozer, Cat D9T or eqt6vMent 3 EA Dozer, Cat DBT or eqOvMent 4 EA Dozer, Cat D7T or equ�wi,tent Wheel Loader. Cat 962K or equivalent 18 , EA 6 EA Dozer,, Cat DEIR or equivalent 7 EA Dozer, LGP Cat D6R or equivalent 8 EA I Dozer, Cat D6K or equivalent EA SECTION B - WHEEL LOADERS 14 EA Wheel Loader, Cat 988H or equivalent 15 EA Wheel Loader, Cat 980H or equivalent 16 EA Wheel Loader, Cat 966K or equ�valent 17 EA Wheel Loader. Cat 962K or equivalent 18 , EA Witeell Loader, Cat 950H �ent 20 EA Whoe�Loiader, Cat 930H orequiva[ent 21 EA Wheel Loader, CM 924H or equivalent ,SECTION C- MOTOR GRADERS 22 1 EA Motor Grader, Cat 12M or equivaient 23 L_�A Motor Grader, Cat 140M or equivalent SECTION D- EXCAVATORS 24 EA Excavator, Cat 345DL or equ(valent 25 EA Excavator, Cat 336DL or equivatent 26 __ EA E.xcavalof, Cat 3252E±�N_ival" 27 EA Excavator, Cat 329E or equlvaIant w0apple 28 EA � Excavator, Cat 324E or equivalent 29 EA Excavator, Cat 320.or 0 k±valenl 30 EA Excavator, Cat 320DL or equivalent wlGrapple 31 EA Ex.cavelo 1, with h�draufic breaker 1,500 (ft 4)) class, CaIl 312D 32 EA Excavatm. with hydrakilic bmaker 3,00011 1b), class, Cat 320DL 12L EA Excavator, with hydrauk breaker 5,000 (ft 1b) class, Cat 320DL 1 34 "EA Excavator, Cat 320 with zero tailspin or equivalent, Cat 3200 ISECTION E- SOIL SCREENERS SECTION F - TRUCKS (OFF ROAD) 37 A Truck. (Off-Road), Cat 725 orequivalent 38 EA Truck, �Off-Road), Cat 730 or oqtflvalent 3-9 EA Truck, Tff-REad SECTION G- SCRAPERS _40'7i;�7,�rraoer, cat 623G —or eqovaiert 41 E EA S Scrap ar, Cat 621G orequivalent 42 E EA ' 'Scra er Cat 615C ore uivalerat. 43 E EA S Scraper, Cat 613G or equivalent H SECTION -TRACK LOADERS _ ERNIMT 3 dO EXHIBIT 3 CERTIFICA TF: nic i 1A e.. mm.. mum m— . _ _ _ _ KIROMAC -01 Cd N E APPLIES PER: MED EMP 0010 000 i PERSONAL & AOV INJURY i L a JE i LOC GENERAL_ AEdL!tgE S ER" AunilowLeiUMNLiTy ..�.,...•. �,.. .. PRODUCTS • COMplop AGO i "^ _ eD X B X ANYAUTO AU SCHEDULED X 0100A442092COF14 10/01/2014 10/01/201b eoQl LY INJURY ( I • i Per rperew) HIRED AUTOS w» AV D i 'BODILYINJURY (Per nooldon) i UMBRELLA LIA9 X �- -.,,�. nr) e • OCCUR C EHapeLU►e i CLANMI& „MADE X _ DEQ X CUPeA442l0214 EA OCCURRENCE 10/01/2014 10101/2015 "i .... ET N! WORKERS COMPENSATION AGORE�GAT'E rC ONO igum LIAeWTY D �._ i 10” TmM � RE)MVE YIN doory�NHI MIDI =D9 ' 4 NSA rIF 9H X NUMA44 214 X ATIJTO 10/01/2014 1010112016 y�a wlmdar E L. EACIIACCIDENT e rT N O S IypWw g L QISEA SE • EA EMPLOYE i E L. DISEASE . Pnr it v i mum w E Clly i l x11010 Its Gov O POW and s �. Ad '� a w y L, (a r�mM p .PSG Iw lnchade wwdthln the Blanket Additlonal Insured snd0reawont C0024li)000S) as ra(ILr re d bl+ n I:on race on ail Policies aXCe 'Workara Calnpenselton. Ths B Rkat AddltIonal Insured endorsement ITTCILTdea the Pr9raary end No"I-Cornobei IneUralH:a wording as raTluk+ed by w r"lan CO"10t OR the General Ust iNiy Polley. Clty Of tkulkla, Ila DMiCara, gran IIT rTleantativaeN era Irllrl Lrdad wrriihln 7lTa Blanket Walaar Di STr irdDa as required II rwr117an. LaDRtralat a, of Da;prranl an all aaROAllletlon a ftpllae an all tlr0NCiaa per ILT2 20 (0d90f,y and WC 11 Nloy pas and elected ) atlahod. y P01 Clea. TITIrty (30) days no ii+oe of 0NO1ULD ANY OF TM ASME 0ESCRI POLICIES BE CANCELLED BEFORE S � WILL BE DE LVRED IN AC DA Wrr" T 1E IC O�lsl0rS. AUTHORIZEDRE ...... ' N'dTTATIVE ACORD 25 (2014101) The ACORD Hama and logo are ®10014.2014 ACOF og ragistsrad marks of ACORD TION. Ali rights rsaar(rsd. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -137, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Secretary's Office CM/ ACM: Bryan Langley, Assistant City Manager Date: February 17, 2015 SUBJECT Consider adoption of an ordinance ordering an election to be held in the City of Denton, Texas, on May 9, 2015, and if a runoff election is required, on June 13, 2015, for the purpose of electing Council Members to Districts 1, 2, 3, and 4 of the City Council of the City of Denton, Texas; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an open meetings clause; and providing an effective date. SUBJECT Consider adoption of an ordinance ordering an election to be held in the City of Denton, Texas, on May 9, 2015, and if a runoff election is required, on June 13, 2015, for the purpose of electing Council Members to Districts 1, 2, 3, and 4 of the City Council of the City of Denton, Texas; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an open meetings clause; and providing an effective date. BACKGROUND Approval of this ordinance would formally call the May 9, 2015 City Council election. It also indicates that the City will be entering into an election agreement with the Denton County Elections Administrator to perform various election functions. The contract will be a "full service" joint election agreement with the jurisdictions within Denton County. Denton County will be responsible for conducting the May election similar to elections held the past several years. As with prior elections, City of Denton voters will not notice any difference in polling locations on Election Day as the County will be using the City's standard Election Day locations at the MLK Recreation Center, North Branch Library, North Lakes Recreation Center and Denia Recreation Center. Early Voting in Denton will be conducted at the Denton County Elections Administration Building located at 701 Kimberly Drive with some early voting at the Civic Center. There will be no early voting at City Hall. Early Voting and Election Day balloting will be all electronic. The deadline for notifying the County for inclusion in the joint agreement is February 20, 2015. A detailed cost analysis will be available once the number of participating entities is known. City of Denton Page 1 of 2 Printed on 2/12/2015 File M ID 15 -137, Version: 1 Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 2 of 2 Printed on 2/12/2015 Olegahour docutnents\ordinances\1 5\electi on calling ing 050915.doc ORDINANCE NO. AN ORDINANCE ORDERING AN ELECTION TO BE HELD IN THE CITY OF DENTON, TEXAS, ON MAY 9, 2015 AND, IF A RUNOFF ELECTION IS REQUIRED, ON JUNE 13, 2015, FOR THE PURPOSE OF ELECTING COUNCIL MEMBERS TO DISTRICTS 1, 2, 3 AND 4 OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS; PRESCRIBING THE TIME AND MANNER OF 'THE CONDUCT OF THE ELECTION TO BE IN ACCORDANCE WITI-I AN AGREEMENT WITH THE ELECTION ADMINISTRATOR OF DENTON COUNTY; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN OPEN MEETINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. SECTION 1. A municipal election is ordered to be held in the City of Denton, Texas on Saturday, May 9, 2015, such date being a uniform election date as defined in Tex. Elec. Code §41.001, as amended (the "Code"), for the purpose of electing council members to Districts 1, 2, 3 and 4. In the event a runoff is required, the runoff election shall be held on Saturday, June 13, 2015. SECTION 2. The election and early voting shall be conducted at the time and in the manner specified in an agreement between Denton County and the City of Denton regarding election process and practices. SECTION 3. The manner of holding such election and all questions pertaining thereto shall be governed by the election laws of the State of Texas. SECTION 4. 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 5. This ordinance shall become effective immediately upon its passage and approval. PRESENTED, PASSED AND APPROVED on the _ day of -- --, 2015 at a regular meeting of the City Council of the City of Denton, Texas, by a vote of ayes and — nays at the regular meeting of the City Council of the City of Denton, Texas. PASSED AND APPROVED this the day of — 2015. CHRIS WAITS, MAYOR sAlegakour doCL1n1ents\ordinances\l 5\clection calling 05091 5.doc ATTEST: JENNIFER WALT ERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: '55 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -150, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Secretary's Office CM/ ACM: Bryan Langley, Assistant City Manager Date: February 17, 2015 SUBJECT Consider approval of the minutes of January 5, 2015, January 6, 2015, and January 13, 2015. City of Denton Page 1 of 1 Printed on 2/12/2015 City of Denton City Council Minutes January 5, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Monday, January 5, 2015 at 11:30 a.m. in the Meeting Room at Emily Fowler Central Library, 502 Oakland Street, Denton, Texas. PRESENT: Mayor Pro Tem Engelbrecht, Council Member Gregory, Council Member Johnson, Council Member Roden, Council Member Ryan, and Mayor Watts. ABSENT: Council Member Hawkins 1. Receive a report, hold a discussion, and give staff direction regarding the annual library report for FY 2013 -14, an update of the strategic plan and recent construction at the Emily Fowler Central Library. Kimberly Wells, Emily Fowler Central Manager, presented the Library staff present for the meeting. She stated that the Library's Annual Report was an audio visual report which highlighted the customers of the Denton public libraries. Highlights for 2013 -2014: A. A primary goal was more community in terms of being part of the community and going out to them. Equal access should be provided for education for all ages such as library science that had forty three different topics which were presented nine times. In May of 2014 the Forge was opened. It had 716 visitors, over 150 3D print drives, and tours. The 3D printer had 450 hours of use. B. Embedded librarians — 16 professional librarians had joined community organizations such as the PTA, DISD, etc. C. We Mean Business — a member of the Library staff was the Business Librarian who regularly scheduled classes for small businesses and packaged presentations and partnerships. D. Community Resources — What Can You Download — downloads were available for ebooks, audio books, magazines, movies, TV episodes and music. A Decision Center helped determine what resources to purchase for the libraries. E. South Branch Library — was looking for future expansion. F. Strategic Plan — This was year one of the plan that encouraged increasing time for working parents. So far they had a 90% action on their Strategic Plan. G. The Future — the Libraries would be turning outward, have a shift in thinking, and placing community needs first in decisions. This would be done by becoming more intimately involved in the rhythms of the community by holding ongoing events punctuated by specific events. Council Member Johnson stated that he liked the idea of customers for the Library and to get embedded in the community. He also liked the proactive aspect of the Library goals. City of Denton City Council Minutes January 5, 2015 Page 2 Council Member Roden asked about the impact of the Library extending past the building into the community and questioned if the Library had looked at what part of the community was not accessing the library. Stacy Sizemore, South Branch Library Manager, stated that they had studies on which areas of the community were using which library but not what part not accessing the library. Wells stated that it was not done as a statistical analysis but working on community outreach into the community through the DISD and other organizations. Council Member Gregory asked for a future report on various meetings and ongoing workshops that happened in the library, either hosted or sponsored by the library. B. Receive an update report, hold a discussion and give staff direction regarding the Hickory Grand Street project. Julie Glover, Economic Development Program Administrator, presented information on the Public Relations Campaign for Hickory Street. The project was started on November 15''. She presented information on total impressions, Facebook likes, click- through/engagement rate, average cost per view and media spent to date. The campaign was performing 20 times better than the industry standard. John Davis, City Engineer, reviewed the updated phasing and schedule. The project was currently in Phase 4B. Phase 5 would start in the next 7 -10 days to help make up lost time during the holiday weather. Many city departments were helping with the project such as Parks, Economic Development, etc. Mayor Watts asked about the original completion date. Davis said it was scheduled for January 19th without any conflicts, etc. Council Member Gregory questioned when the sidewalk on Mulberry would be fixed. He had received an email several weeks ago from Davis who indicated that money had been found to fix it and Gregory was appreciative of the response. Council Member Johnson asked Davis if he had any thoughts on how to avoid this type of situation in the future with businesses suffering during construction. Davis thought it would be better to wait until the completion of the job and then look at lessons learned on how best to avoid those pitfalls. One area might be to do more extensive utility location to avoid finding unnoted utilities. Council Member Johnson requested an Informal Staff Report following the completion of the project detailing best practices and what was learned about the process. Council Member Gregory had the impression that the project was faster and moving along more than the Cedar Street project. City of Denton City Council Minutes January 5, 2015 Page 3 Council Member Ryan asked about what plans had been made as far as coordinating sidewalks with businesses. He didn't want businesses to shut down because customers could not get to them. Davis stated that the sidewalks would be done segment by segment and staff was working with businesses for access. Mayor Watts stated that the date for Phase 5 on the schedule was February 9th. The original schedule had the Phase starting on January 5th and ending on February 9th. He questioned what was happening to compress that ten days. Davis stated that there was an overlapping of Phase 4 and 5 and that the subcontractors were hiring more people to work on the job to speed up the process. There was also the discussion of a possible bonus for early completion. Council Member Roden asked what else might be done in terms of future updates for the area. Glover stated that this was an unfunded program so a lot depended on how much money could be found to keep the campaign going through the project. Aimee Bissett, Director of Economic Development, stated that originally this was a three month media project and staff would see in the future how much more funding was needed for it. Council discussed the public relations campaign costs, future segments, future funding for the campaign, and whether more segments would be produced. C. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting and Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. There were no items of New Business. With no further business, the meeting was adjourn 12:37 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 6, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, January 6, 2015 at 1:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Pro Tem Engelbrecht, Council Member Gregory, Council Member Johnson, Council Member Roden, Council Member Ryan, and Mayor Watts. ABSENT: Council Member Hawkins. 1. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for January 6, 2015. Council Member Ryan questioned that the repealing ordinance for Consent Agenda Item I was not authorized to be put in place. Brian Lockley, Director of Planning and Development, stated that in July when the ordinance was adopted there were questions as to what Council had adopted. Legal feedback indicated that the ordinance did not cover all of what was requested. That ordinance did not move forward and was not executed. City Manager Campbell stated that the proposed ordinance cleaned up language that was intended in July and what was requested. It was correcting the prior ordinance to make sure all of what was requested was in the ordinance. Council Member Gregory asked why the ordinance was on the Consent Agenda and requested more of an explanation. Lockley stated that the initial purpose of the ordinance was to allow the applicant to clear and grade their property without platting which was required by Denton Development Code. The initial thought was that the developer would submit a phasing plan. Further discussions centered on whether that could be done only one time rather than in phases and questions came up on how that might be done in phases. Based on that discussion, criteria were developed to review the phasing plan, revisions and amendments which were not included in the ordinance in July. The actual criteria today would be required with a phasing plan that staff could review, approve, deny or suggest revisions. This would allow staff more flexibility for the phasing plan so that if changes came, it would not have to come back to Council for review and approval. Council Member Gregory asked if the applicants were in favor of the proposed ordinance. Lockley stated that the applicants were in agreement with the proposed ordinance. Mayor Pro Tem Engelbrecht stated that Item J on the Consent Agenda did not indicate a dB level for the noise exception. Emerson Vorel, Director of Parks and Recreation, stated that the applicant did not request a change in dB. The ordinance interpretation was 65 dB and that would be the required limit. Mayor Pro Tem Engelbrecht asked if the contractor expected to work the whole time. City of Denton City Council Minutes January 6, 2015 Page 2 Vorel stated that the contractor had requested to work all available time allowed in order to shorten the work time by 2- 2 1/2 weeks. Mayor Prom Tem Engelbrecht asked if there was an allowance for changes by the contractor if needed. Vorel stated that had not been discussed. Mayor Pro Tem Engelbrecht asked about posting contact information so people knew who to call with questions. Vorel stated that staff would work with Public Communications to get that word out. Mayor Pro Tem Engelbrecht suggested posting signs with email addresses and phone numbers for citizens to call for questions. Mayor Watts stated that this request was to help mitigate the traffic problems on University. He questioned if the robocall system could be used to alert residents in the immediate area. John Cabrales, Assistant City Manager, stated that the reverse 911 system could be used to call that area to inform them of the situation. Mayor Watts questioned the replacement policy for the mowers and tractors listed in Consent Agenda Item B. Terry Kader, Fleet Supervisor, stated that this was a similar type of replacement program as was used for vehicles except that it was based on hours instead of miles used. Mayor Watts asked about the purchase of fuel noted in Consent Agenda Item C. Vance Kemler, General Manager of Solid Waste, stated that the City continued to purchase CNG trucks which were the least fuel efficient due to the nature of their work. Because there were more vehicles there was a larger amount of gas to approve. The unit cost and the cost of natural gas had not changed. The cost of diesel was difficult to estimate over the next several years. Mayor Watts asked about Consent Agenda Item A dealing with the airport grant and questioned what the increase cost was. Quentin Hix, Airport Manager, stated that this was a project started in 2013 to add a meeting room to the Airport building and add a potential restaurant. The grant was for the meeting room portion of the terminal expansion but due to the two phases, the original concept plan of estimate of cost was less than what the detail included. As staff moved through the project, it was identified that the meeting room needed to be slightly enlarged and had additional infrastructure improvements on the outside of the terminal, parking and relocation of utilities which had the cost over the original concept estimate for the meeting room. City of Denton City Council Minutes January 6, 2015 Page 3 3. Work Session Reports A. SI14 -0013 Receive a report, hold a discussion, and give staff direction regarding the proposed Rayzor Ranch Vision and proposed revision to the current Ordinance. Brian Lockley, Director of Planning and Development, presented the details of the item. He reviewed a brief history of the project, the 2010 -158 ordinance revisions, and RED Development's vision. Staff was requesting Council direction on RED Development's vision for Rayzor Ranch Town Center. The vision presented by the RED development was not captured in the current ordinance. Discussion was also needed on how to better facilitate the development. The overlay district was established in 2007 and amended in 2010 as a request by the applicant which removed the site plan, established a bubble plan, and revised architectural, landscape and signage guidelines. Issues with Flexibility - Article 1 — this section indicated that the Rayzor Ranch Town Center was to have distinctive architectural theming, including common design elements and materials. The question was how apply the review of the building permits in terms of whether Building A was consistent with Building B. The common design elements and materials did not stipulate how much of what material was required and where it should be located on the structure. Section B. 3 stated that the project was to have a complimentary building character. The buildings would be designed to enhance the community character and have features that provided visual interest. Large blank facades and wall surfaces would not be permitted. "Complimentary building character" was difficult to interpret, none of which were detailed in the Overlay District. A question was how to interpret that in terms of native stone and stone veneers. Staff was recommending that the gray areas be revisited to remove any uncertainty and aid in efficient project processing. Council Member Gregory asked if the entire building had consistent elements. Lockley stated that out parcels would have some elements consistent throughout such as color and materials. Store fronts would have similar architecture. Council Member Gregory asked about the 2010 Article 1 wording and whether it was a whole revision done where the developer proposed a set of wording and staff modified it until they were comfortable with the proposal by the developer. He questioned the author. Lockley stated that he was not sure how the language was developed that the Council adopted. The discussion was about the need to ensure that this was a consistently developed property but also allowed for flexibility when dealing with independent users. The language was to rely on the applicant to bring in the design and users that met the overall goal. Council Member Gregory stated that he had some anxiety when the detailed plan was changed to the bubble plan because of a fear of losing some of the promised quality. There was an agreement that flexibility was important but everyone agreed that quality and upscale development was part of the agreement. City of Denton City Council Minutes January 6, 2015 Page 4 Council Member Johnson stated that for clarification he felt the applicant in 2010 inherited the original plan. If there were no incentives in place for reimbursement of streets, etc., the developer could build whatever he wanted if the overlay was removed. The interpretation did not feel like they were partners with the developer. Council Member Gregory stated that he was under the impression that the incentives were for reimbursement of public infrastructure. However, the first paragraph stated that the road may be private or public at this time depending on final design. Public tax dollars should not be used to develop private roads. He felt the flexibility given to staff and provided for the developer had resulted in some confusion or disagreements. Lockley stated that his purpose at this meeting was for Council direction on how to move forward. If the direction from Council was to follow established standards, then staff would go with that. If not the established standards but rather the vision submitted, staff would go with that. Council Member Roden stated that it might helpful if there were clear case studies of what was being interpreted by Council and what staff was interpreting. Examples could be shown to help with decisions. Mayor Pro Tem Engelbrecht felt that the comments by RED were descriptive enough to reflect in the presentation. He asked where staff stood on the prior presentation from RED. Lockley stated that it went back to the comment on interpretation on quality. His position might be good to him but might not be important to others. He could offer a professional opinion but he had to balance those interests with Council and the applicant for the best development. Mayor Pro Tem Engelbrecht stated that unifying architecture material just had a listing of stone but if that were changed to masonry it would open up a variety of materials. Lockley stated that there was a set of parameters to operate in with an "up to" amount for any of these different elements to be incorporated. The developer could pick and choose from those to design elevation. Mayor Watts stated the intent during the ordinance revision was very firm on the changes for incentives and multi - family changes. He wanted the same quality as everyone else did and felt that there appeared to be lack of confidence in the process with the developer. Council discussed the process of how to meet a middle ground on the development of this project. The hope was that the direction given at this meeting would not delay the development. Lockley stated that if Council was satisfied with elevations then that would be a start to the process. Council Member Johnson stated that one important component was the tenant. If too much flexibility was a concern, the project made no sense if it could not attract national high quality brands to this market. The tenant would control the quality of the building. City of Denton City Council Minutes January 6, 2015 Page 5 Council Member Roden felt that it could not be assumed that quality would happen if the standards were loosened. He had a concern that staff had a problem that was not being articulated and questioned what the differences were between staff and the developer. Lockley stated that one concern was the backs of buildings and the importance to have 360 degree architect on the buildings. The front had many differences to show different stores. However, the multi - family portion of the development would look down on the backs of the buildings. If in that multi - family all the residents saw were garages or deliveries for the stores, there would not be the impression of nice quality development. Screening the backs with a variation of materials near the top would add to the backs of the buildings and would be seen from all around the development. Something added to the walls to vary the surface area such as roof features, other materials to break up the blank features. It was not enough to put everything on the front and there was a need to be concerned on how people interacted with the entire area. Quality developments that were sustainable and places of continued interest had detail in layout and design. Mayor Pro Tem Engelbrecht pointed out that none of the plantings were specified on the list and it was that kind of thing that bothered him. A picture was presented but was not exactly what was proposed. Council Member Gregory felt that some of the buildings according to plan would be what people would see from the multi - family and some would be the first impression of what people saw when they came into the development. The back side of the development was unattractive and he understood why staff had suggested a percentage of masonry as that was a common way of HOAs to guarantee quality of development in a neighborhood. There needed to be a concern not only about building materials but also the landscape materials that helped invite people into the area. He liked having RED as a partner and liked what was done on the north side. He suggested letting RED build as proposed and change the ordinance in the future if the quality was not there. If later it was felt that RED was taking advantage of the flexibility, then the ordinance could be changed. Lockley stated that his direction at this point was develop those structures with the vision documents and to look at that in concert with the language in the current ordinance to ensure the development was of the quality it was understood to be. Lockley stated that the last piece was the pedestrian connectivity. The sidewalks did not appear to be designed for intuitive pedestrian use. If the area was walkable, the intent would be to park somewhere and walk somewhere without having to get back into a car. Staff was looking for connectivity from the outer parcels to the inner parcels. This was an area to revisit in the plan to understand how the photos incorporated into a more pedestrian intuitive plan. Mayor Pro Tem Engelbrecht stated that it appeared to him that the RED was looking at the Town Center area with connectivity to the south and east but did not see the outer areas as being integral to the Town Center and to the walking area. He felt there was disconnect between what the staff was looking at and what RED was looking at in the pedestrian area. That tied into how to orient the buildings on I35 plus how to orient a drive through for the restaurants. City of Denton City Council Minutes January 6, 2015 Page 6 Council Member Roden questioned what the goal was for a walkable south side. No one walked on the north side. He questioned if the goal was to have all the acreage a walkable area or just a small area in a sea of urban environment. He was not sure if the vision was to try and connect the two. Lockley stated that it was understood that the north side would not be walkable. It was also understood that the south side with the Town Center and out parcels would be pedestrian oriented. The developer clarified that it would not be pedestrian oriented but walkable and the question was how to make that happen. The current ordinance did not speak to the vision plan that was submitted. To incorporate that, an ordinance adopting that with those parameters would be needed. In the interim, staff would use the vision guide book as policy direction for plans as they came through. City Attorney Burgess stated that staff could incorporate the vision in an ordinance as quickly as possible and do a case by case basis before the ordinance was passed. Lockley stated that the City Manager could direct staff to use the vision book to move forward. Mayor Watts stated that he would like staff to visit with RED on the pedestrian walkway to see what could be workable. Mayor Pro Tern Engelbrecht suggested setting up a mechanism to help with concerns on what RED was proposing as he did not want all of it falling on staff for the final decisions. Mayor Watts suggested that staff and the developer brain storm to find a structure acceptable for both consensus on how to do that. City Manager Campbell stated that if there was a concern about the vision or the intent of the Council, staff and the developer would work on an agreement and if one could not be reached, then have a mechanism to address those concerns. The intent was to not have Council involved in every decision. Mayor Pro Tem Engelbrecht stated that would address the Town Center but not the out parcels and questioned how those would treated and if they should be included in the process Mayor Watts stated that whatever the theme or consistency in the Town Center would be applied to the out parcels with consideration for trade dress for some developments. The outside should reflect a common theme in the out parcels. He felt a message was being sent regarding no blank walls in high visible areas. Council Member Gregory stated that he would like to see premium finishes in the mix. Staff and developer needed to come up with an agreement on those premium finishes with a reasonable selection for those types of finishes. Mayor Watts requested an Informal Staff Report on 380 reimbursements for public infrastructure. City of Denton City Council Minutes January 6, 2015 Page 7 B. ID 15 -001 Receive a report, hold a discussion, and give staff direction regarding Smoking Ordinance No. 2012 -367. Lindsay Baker, IGR/PIO, stated that her presentation would be a review of what was included in the backup regarding the smoking ordinance. The ordinance was implemented in 2012 with no major issues or citations on the ordinance. Staff was asking Council if it wanted to expand or remove any issue from the ordinance. The issue of E- cigarettes might be a consideration, a discussion on bars not currently 100% smoke free or outdoor distances. Staff would like to include in a revised ordinance a 30 foot distance from libraries. Council Member Roden asked if minors were able to purchase E -Cigs or E juices. Baker stated yes. Council Member Roden stated that E -cigs was an unregulated market leaving cities in Texas to regulate it. Mayor Watts stated that he would be in favor of a stipulation for an age for the purchase of E- cigs. He would also support a ban in bars that currently did not have a smoking ban plus a ban on E -cigs. There should be a distance requirement included for the recreation centers and some kind of setback from the entrance to establishments. Council Member Ryan stated that the provision of not having setbacks dealt mainly with the downtown due to the close proximity of the buildings. In terms of the E -cigs he was in favor of no purchasing under 18 as well as the recreation center distances. He noted that one unintended consequence was the intention to allow smoking in an establishment if no one under the age of 18 went in. The establishment did not have to declare whether it was smoking or not and that caused confusion. He was not in favor of banning smoking altogether as bars were self - regulating. However, the establishments needed to set that they were either a smoking establishment or non - smoking establishment. Council Member Gregory asked if there were comments from the businesses since the current ordinance went into effect or comments that revenues were harmed since the ban went into effect. Baker stated that she had not received any negative feedback and the Council agreed that they had not received any negative feedback. Council Member Gregory stated that Council was trying to protect the health and safety of people who worked in places from second hand smoke. He was in favor of a better setback for park facilities, to extend the ban to all bars, prohibiting the sale of E -cigs and vapor to anyone under 18 and to include E -cig use in the smoking ban. Council Member Johnson agreed with the stipulations noted by Council Member Gregory. Smoking should be banned in all public places. Council Member Roden encouraged staff to have a conversation with the County and smoking on the Courthouse grounds. He also questioned if there was a need reengage the original committee that worked on the smoking ordinance or to have input from citizens on these issues. City of Denton City Council Minutes January 6, 2015 Page 8 Council Member Gregory felt that there was no need to have a committee and that it might extend the process. At this point he was not concerned about outdoor patios but would like more information on that concern. Council Member Ryan felt that rather than having a full ban in bars to not allow anyone under 18 in a bar with smoking. Council Member Roden stated that he was uncomfortable with the exemption for bingo establishments. Baker stated that those establishments had a three year exemption to come into compliance. Mayor Pro Tem Engelbrecht suggested a specific period of time for public comment before drafting the ordinance. Council Member Ryan stated that if a bingo establishment had already made the change over to a designated smoking area, smoking should not be banned in that facility. However, if a facility had not made the change, then consider a ban from that facility. Baker suggested that Engage Denton be used for public comment. Consensus of the Council was to have another work session on the proposed ordinance before actual consideration of an ordinance. Topics to consider included regulating the sale of E -cigs to those over 18, ban E -cigs in the same areas as smoking, banning smoking in all bars, outdoor distance settings and the health issue, include the recreation centers in the distance requirements, not reconvening the committee and holding discussions with the County. C. ID 15 -008 Receive a report, hold a discussion, and give staff direction regarding the structure of the 2014 Bond Oversight Committee. Bryan Langley, Assistant city Manager, reviewed the 2014 bond program which was passed in November 2014. Historically Council created oversight committees to provide guidance when potential changes or adjustments to the program might occur. The Oversight Committee had typically been composed of the chair and subcommittee chairs of the original advisory committee. Staff was recommending a five member oversight committee comprised of Randy Robinson, Tim Crouch, Janet Shelton, Sarah Hoffman and Brandon McCleskey. There was an existing 2012 bond committee just for streets and there was the possibility of coordination of the two committees. A joint meeting of the two committees could be held if needed. Council Member Ryan asked if there were any cross over members. Langley stated that Tim Crouch served on both committees. Council Member Roden stated that there were several questions on the 2012 street bond with prioritizing the ones which needed the most work. The 2014 bond issuance provided more bonds for streets. He questioned how the two lists would be prioritized and suggested that two committees look at realigning the two lists. City of Denton City Council Minutes January 6, 2015 Page 9 Langley stated that staff could look internally on how that might be done and have a joint meeting if needed. A resolution would be brought back in February for Council consideration with a bond sale in late spring. D. ID 15 -009 Receive a report, hold discussion and consider recommending approval of hiring a second construction crew and purchase of related construction equipment for the Wastewater Collection department. PS Arora, Assistant Director of Water Utilities, stated that the Wastewater Collection Department was currently facing four major projects. Those projects included (1) EPA compliance, (2) Street bond program and additional funds dedicated for street reconstruction impacting sewer lines under the reconstruction designated streets, (3) coordination required with Water, Streets, and Drainage departments for street reconstruction projects, and (4) high contractor bid prices for sewer rehabilitation/reconstruction projects impacting wastewater department budget. Coordination was critical for the street reconstruction projects with a great deal of coordination required between Wastewater Collections, Water Distribution, Streets, and Drainage. Water Distribution had 2 in -house crews while Wastewater only had one crew which slowed the projects and resulted in longer timelines to complete a project. Projects were also coming in more costly. He showed a comparison of in -house construction costs as compared to outside contractor jobs. The Wastewater Collections Department was proposing to add a new construction crew. The new positions and purchase of necessary construction equipment would be funded from the current approved budget for the Wastewater Collections Department budget. Consensus of the Council was to proceed with the staff recommendation. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -017 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; 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 potential purchase of certain real property interests located in the T. Toby Survey, Abstract No. 1285, City of Denton, Denton County, Texas, and generally located north of Airport Road and east of Masch Branch Road. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Denton Enterprise Airport: Cook - McDuff tract - 10.154 acres [ID 15 -015] & Cook - Walters tract - 5.89 acres [ ID 15 -016]) City of Denton City Council Minutes January 6, 2015 Page 10 B. ID 15 -023 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to the acquisition of real property interests in the in the Alexander Hill Survey, Abstract No. 623, City of Denton, Denton County, Texas, generally located in the 200 block of Collins St.. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation. (South Locust DME Substation Expansion) [File ID 15 -020] C. ID 15 -039 Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding potential litigation and legal issues and strategies associated with the City's sign code and sign regulations, where a public discussion of such 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. [File ID 15 -038] D. ID 15 -004 Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies relating to selecting and acquiring generation resources for the City; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide staff with direction. E. ID 15 -028 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 the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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; current and proposed extension to, moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current City of Denton City Council Minutes January 6, 2015 Page 11 and proposed; 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 ordinance and pending litigation styled Jerry Patterson, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. D- 1- GN -14- 004628 currently pending in the 53rd District Court of Travis County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 09833- 431 currently pending in the 431st District Court of Denton County 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. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. CONSENT AGENDA Council Member Gregory motioned, Council Member Ryan seconded to adopt the Consent Agenda and accompanying ordinances and resolutions. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. Resolution No. R2015 -001 A. ID 15 -002 Consider approval of a resolution of the City of Denton, Texas authorizing the City Manager, or his designee, to expend Two hundred thirty -five thousand two hundred seventeen dollars and fifty cents ($235,217.50) of Airport funds to supplement a grant supported improvement to the Denton Enterprise Airport terminal; and providing an effective date. The Council Airport Committee recommends approval (3 -0). Ordinance No. 2015 -001 B. ID 15 -003 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for mowers and tractors for the City of Denton; and providing an effective date (RFP 5699- awarded to Ag -Power Inc. in the three (3) year not -to- exceed amount of $1,211,622). Ordinance No. 2015 -002 C. ID 15 -007 Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a First Amendment to a contract with Ultimate CNG, LLC. for the purchase of temporary mobile compressed natural gas (CNG); providing for the expenditure of funds therefor; and providing an effective date (File 5424- City of Denton City Council Minutes January 6, 2015 Page 12 providing for an additional expenditure amount of $450,000 with the total contract amount not -to- exceed $595,000). Ordinance No. 2015 -003 D. ID 15 -011 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement for engineering and consulting services for the development and implementation of a computer model to optimize chemical usage for phosphorous removal, energy efficiency, methane generation, and optimization of the processes during dry and wet weather at the Pecan Creek Water Reclamation Plant; providing for the expenditure of funds therefor; and providing an effective date (File 5718- awarded to Hazen and Sawyer, P.C. in the not -to- exceed amount of $136,017). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -004 E. ID 15 -012 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the State of Texas Smart Buy Program for the purchase of ammunition for the City of Denton Police Department as awarded by the State of Texas Contract 680 -A1; and providing an effective date (File 5721- awarded to Precision Delta Corporation, Inc. in the three (3) year not -to- exceed amount of $120,000). Ordinance No. 2015 -005 F. ID 15 -015 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Written Notice of Termination thereby terminating the Contract of Sale between the City of Denton, Texas ( "City ") and Dorothy Nell Cook N /K/A Dorothy Nell McDuff ( "Seller ") for the sale and purchase of a 10.154 acre tract situated in the T. Toby survey, Abstract No. 1285, located in the City of Denton, Denton County, Texas; and providing for an effective date. (Denton Enterprise Airport: Cook - McDuff tract - 10.154 acres) Ordinance No. 2015 -006 G. ID 15 -016 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Written Notice of Termination thereby terminating the Contract of Sale between the City of Denton, Texas ( "City ") and Everett F. Cook and Joy L. Walters ( "Seller ") for the sale and purchase of a 5.89 acre tract situated in the T. Toby survey, Abstract No. 1285, located in the City of Denton, Denton County, Texas; and providing for an effective date. (Denton Enterprise Airport: Cook - Walters tract - 5.89 acres) Approved the minutes listed below. H. ID 15 -019 Consider approval of the minutes of November 3, November 4, November 11, and November 18, 2014. City of Denton City Council Minutes January 6, 2015 Page 13 Ordinance No. 2015 -007 L Z13 -0013B Consider adoption of an ordinance, amending approved Ordinance No. 2014 -193, relating to approximately 99 acres within the southern tract of the Rayzor Ranch Overlay District, located at the southeast corner of U.S. Highway 380 and Interstate Highway 35, and described as Lot 1, Block 5 Rayzor Ranch South Conveyance Plat (document number 2010 -119), which exempted from Denton Development Code, Section 35.18.2.A.1 relative to approval of a final plat and construction plans, subject to certain prescribed restrictions, prior to release of a clearing and grading permit, accepting applicant's withdrawal of the request to create a new RR -2A subdistrict and extending the applicability of existing stormwater quality standards for the district Approved the noise exception requested below. J. ID 15 -037 Consider a request for an exception to the Noise Ordinance from Jagoe- Public to reconstruct U.S. 380 from Bonnie Brae to Hinkle. If approved, work will take place from January 7, 2015, through January 30, 2015, 7:00 p.m. to 6:00 a.m. Texas Department of Transportation regulations allow for work to be completed from Sunday through Friday. As such, related work would begin Sunday evening and end Friday morning and will consist of milling the existing roadway, loading millings onto trucks, and hauling them away. Ordinance No. 2015 -008 K. ID 15 -038 Consider adoption of an ordinance of the City of Denton, Texas repealing § §33.10.6 and 33.18.8 of the Code of Ordinances of the City of Denton, Texas; providing for severability; providing a savings clause; and providing an effective date. 3. ITEMS FOR INDIVIDUAL CONSIDERATION - CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS Ordinance No. 2015 -009 A. ID 15 -020 Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple title to a 2.484 acre tract located in the Alexander Hill Survey, Abstract No. 623, City of Denton, Denton County, Texas, as more particularly described and depicted on the Exhibits "A" and "B" attachments to the ordinance and located generally in the 200 block of Collins St. ( "Property Interests "), for the public use of expansion, construction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and structures, including substations and switch stations; authorizing the City Manager, or his designee, to make a final offer to Tomasa L. Garcia ( "Owner ") to purchase the Property Interests for the price of Three Hundred Seventy Eight Thousand Seven Hundred and Eleven Dollars and 00 /100 dollars ($378,711.00), and other consideration, as set forth in the Contract of Sale attached as Exhibit "C" to the ordinance; authorizing the filing of eminent domain proceedings to acquire the Property Interests if the final offer is not accepted; authorizing the expenditure of funds; and providing an effective date. (South Locust DME Substation Expansion) City of Denton City Council Minutes January 6, 2015 Page 14 Galen Gillum, Executive Manager of DME Administrative Services, stated that this project involved the current DME Electric Substation Re -build project initiative. DME staff identified this property as necessary to accommodate the construction and operation of improvements to the electric transmission and distribution systems. This was one of three tracts that were needed for the future Locust Substation. An initial offer to purchase the property was extended to owner; however, the owner rejected the initial offer. Council will need to find that this property was needed for public use and that the necessity for the property was for the DME Substation Expansion. Council Member Gregory motioned "I move that the City Manager, or his designee, is authorized to make a written final offer to the Owner, any and all of Owner's successors in interest to the Property Interest, or any other parties who may own any interest in the Property Interest to purchase a 2.484 acre tract situated in the Alexander Hill Survey, Abstract No. 623, located in the City of Denton, Denton County, Texas and located generally in the 200 block of Collins Street, (the "Property Interest ") and is more particularly described on Exhibit "A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use for the expansion, construction, maintenance, operation, and improvement of the City's electric transmission and distribution lines, facilities, and structures, including substations and switch stations, and, if the terms of the written final offer are not agreed to by the Owner, any and all of Owner's successors in interests to the Property Interest, or any other parties who may own an interest in the Property Interest, to then use the power of eminent domain to acquire fee simple title to the Property Interest. Mayor Pro Tem Engelbrecht seconded the motion. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. 4. PUBLIC HEARINGS A. CAI 1-0004d Hold a public hearing and consider an ordinance of the City of Denton, Texas, adopting the update to the City of Denton's Comprehensive Plan; and providing an effective date. (CAI 1-0004) The Planning and Zoning Commission recommends approval of this request with conditions (5 -2). Ron Menguita, DRC Administrator, presented the details of the proposal to update the Comprehensive Plan. He reviewed the prior meetings and phases completed regarding the proposed plan. The Community Vision Statement was presented in terms of character of Denton, people, institutions and government, and strength of the economy. It included strengthening the City's form and function. The second component was the preferred growth concept which was the form, character and general location of development in the city that reflected input. The Plan also addressed present issues identified by stakeholders and the community. New opportunities and challenges such as City of Denton City Council Minutes January 6, 2015 Page 15 sustainability by promoting compact and purposeful growth in the center and along corridors, shifting demographics, and the influence of gas wells was also identified. There were a number of outreach activities conducted to solicit input from the community. The first community forum dealt with issues and aspirations. The second forum dealt with selecting the future in terms of a preferred growth concept and the third reviewed the draft comprehensive plan. He illustrated the existing 1999 Denton Plan and the updated Plan for 2030. The Implementation and Monitoring component included principles to guide future development and decision making, procedures, guidelines and an action plan for short -term, mid -term and long -term and ongoing actions. The Action Plan had different types of actions and various timeframes and included responsible departments for these actions and partners associated with the plan. Staff recommended approval as did the Planning and Zoning Commission with conditions. Conditions 1 -37 were amendments that were being proposed by staff for clarification purposes. Conditions 38 -46 were based on discussions held during multiple Planning and Zoning Commission workshops and work sessions. These were conditions that the Commission would like changed to the draft plan and what they would like to see accomplished as part of the Plan. He reviewed the details of conditions 38 -46. Council discussed the various conditions with related explanations on how the conditions would be implemented. Condition 46 was discussed in terms of whether to continue meeting with the Citizens Committee and whether it would add another layer to the process which might not be needed. Once enacted, it was questioned if there would be standing committees to vet the Plan policies, actions and priorities. Julie Donofrio, Wallace Robertson and Todd Consultant, stated that continuing with the Citizen Committee offered the opportunity to engage with those community members who helped develop the plan. It was more of an option to use the committee if there was a major issue to consider. Menguita stated that Condition 47 was added by one Commission member stating that the Council should work to do away with the concept that Denton was difficult to do business with. Council Member Roden stated that whether that condition was included or not included, it did not have any effect on the Plan. This was more of a statement of a value. Council Member Gregory felt that several of the conditions were revising the wording, adding wording or amending the wording but some of the conditions did not seem to fit into a section. He questioned how those would be memorized if they were not specific revisions to parts of the plan presented. Menguita suggested that when Council made a motion, it should identify which conditions it wanted to bring forward. It would not hamper the plan if they were not included. Council Member Gregory felt that a motion might be one to approve the conditions or certain conditions. Those conditions would be incorporated into the Plan but some of the conditions City of Denton City Council Minutes January 6, 2015 Page 16 would just be listed and memorialized in the Plan so that they stayed with the plan. Those would be incorporated into the document but not the ordinance. Council Member Gregory asked if the Council was in agreement with Conditions 1 -46. Menguita stated that Conditions 38, 39 40, 41 42, 43, 44, and 45 were action conditions which needed to be included in the plan. Council Member Engelbrecht stated that he did not know that Council would be voting on this at this meeting. He would like time to review the conditions and give thought on how to include some of the statements into the ordinance. He suggested continuing the item to the next council meeting. Mayor Watts asked if there was a sense on what conditions Council would like included in the Plan. If there was something the Council did not want, then it should be removed. Menguita noted that Conditions 48 -57 were items discussed during a Council Work Session discussion. He review those conditions and the revised action that would be included in the Plan. Council Member Gregory stated that he was not sure that a monitoring and evaluation report reviewed by a citizen's advisory committee needed to be in that language. He asked the City Manager that since this was a big plan and city operation how he envisioned dividing these tasks out. City Manager Campbell stated that the Comprehensive Plan effected every department but implementation and management would be done by Planning. Everyone would be brought into the process from time to time as this was a comprehensive planning document. Menguita stated that the Planning Department would be in charge of monitoring but supported by technical advisory departments which consisted of various departments of the city. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Michelle Lynn, 1401 Egan, Denton, 76201 - spoke in favor Comment cards were submitted by the following: David Mollen, 701 Chisholm Trail, Denton, 76209 - in support Jim Owen, no address given — in support The Mayor closed the public hearing. Mayor Pro Tem Engelbrecht motioned, Council Member Ryan seconded to closed the public hearing and continue the item to the February 3, 2015 meeting. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson it City of Denton City Council Minutes January 6, 2015 Page 17 Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. Ordinance No. 2015 -010 B. DCA14 -0007 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding amending Section 35.5 of the Denton Development Code to add 'Bar" to the schedule of uses and amend Section 35.23 to define the use of 'Bar" providing for a penalty in the maximum amount of $2,000 for violations thereof, severability, and an effective date (DCA14- 0007). The Planning and Zoning Commission recommends approval of this request (7 -0). Ron Menguita, Development Review Administrator, stated that this proposed ordinance dealt with the definition of a bar and land use. He reviewed the background of the issue since the passage of the local option election. Currently there was no definition of a bar in the Development Code. The use and definition of a private club would remain in the Development Code as it did not exclusively apply to alcohol sales. However, a definition would have to be created for those establishments that no longer meet the definition of a private club and derived the majority of their sales from alcohol. The proposed definition of "bar" was an establishment whose primary activity was the sale of alcoholic beverages for on premise consumption. The proposed use table was shown which would be the same as the private club use. Staff recommended approval as did the Planning and Zoning Commission. Council Member Roden asked about the changing of Certificates of Occupancy. Menguita stated that there would be an opportunity for someone with private club to change to a bar which could be done administratively with a waiver of the fee. Staff was strongly encouraging owners to follow that procedure. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Johnson motioned, Mayor Pro Tem Engelbrecht seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. Ordinance No. 2015 -011 C. PDA14 -0008 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending lot coverage, landscaping and elevations to the approved Detail Plan of Planned Development 12 (PD -12); and providing for a penalty in the maximum amount of $2,000 for violations thereof, severability, and an effective date (PDA14- 0008). The Planning and Zoning Commission recommends approval of this request (7 -0). City of Denton City Council Minutes January 6, 2015 Page 18 Ron Menguita, Development Review Administrator, stated that this was a proposal from the Toyota dealership for an amendment to their landscape plan. He presented the future land use map, location map, and background of the approval of PD -12. Staff felt that there was a significant amount of change to require Planning and Zoning Commission and Council consideration. The dealership was proposing an accommodation in the landscape plan for an upgrade to their facade and an expansion of a portion of the building. This would result in the relocation of two existing trees and the removal of 382 square feet of landscaping. The proposal would reduce the landscaping area and increase the building site plan area. The staff recommended approval as did the Planning and Zoning Commission. Mayor Watts questioned what triggered the process so that it had to go to DRC, the Planning and Zoning Commission and Council for a small removal of landscaping instead of being administratively done. Menguita stated that the removing of the landscaping triggered the significant process. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Gregory motioned, Council Member Johnson seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. Ordinance No.2015 -012 D. Z14-0021 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding rezoning from a Neighborhood Residential 4 (NR -4) zoning district and use classification to a Neighborhood Residential Mixed Use 12 (NRMU -12) zoning district and use classification with Mixed Use Residential Protection Overlay restrictions on approximately 2.195 acres of land generally located at the northeast corner of McKinney Street and Bellaire Drive; and providing for a penalty in the maximum amount of $2,000.00 for violations, thereof, severability, and an effective date. (Z14- 0021). The Planning and Zoning Commission recommends approval (6 -1). Ron Menguita, Development Review Administrator, stated that this was the McKinney Street Housing Development which was a proposed elderly housing project. He presented information on the location map, existing zoning, future land use, proposed zoning map, adjacent uses, site photos, and land use analysis. The criteria for approval of the zoning change was reviewed which staff recommended denial as the NRMU -12 zoning was too intense for the area. That zoning classification permitted more commercial uses and higher intensities. It also did not comply with the future land use element. The Planning and Zoning Commission recommended approval with mixed use residential protection overlay restrictions. City of Denton City Council Minutes January 6, 2015 Page 19 Council Member Johnson stated that there were other sites of NRMU nearby this proposal on the proposed zoning map. He questioned if the staff opinion was that the other potential uses in the classification were too intense for the area or if the elderly housing was too intense as addressed in the Commission overlay. Menguita stated that concern was the other uses which were addressed in the Commission overlay. He presented the overlay restrictions. Those restrictions included (1) all uses except for elderly housing would be restricted to uses permitted within the NR -4 zoning district, (2) the use of elderly housing was limited to a maximum of 25,000 total square feet or gross air conditioned floor area, (3) a privacy fence would be required on the north and east property lines, (3) tree canopy coverage would be 50% of the lot area (4) required parking lot tree canopy would be 20% of the required parking area, (5) the tree canopy must be evenly distributed throughout the parking area and the perimeter, (6) an interior planting island must be provided at an average of every 10 spaces and shall include one large tree per island, and (7) a large tree shall be a tree that would produce a mature canopy of 1,256 square feet (this would be in addition to any tree preservation requirements). Council Member Gregory asked for a definition of elderly housing. Menguita stated it was a facility where 80% of the occupants were 55 or older. Council Member Gregory stated that the minutes of the Planning and Zoning Commission showed that a concern expressed by the Commission was that rather than changing the zoning to NRMU -12, to leave it as NR -4 with an overlay district which would allow that one particular use and accomplish the same purpose. Menguita stated that when these restrictions were done as NR -4, allowances were being made for something that was not legal. But if the zoning were changed, the potential uses would be reduced. An allowance could not be done but restrictions could be done. Council Member Roden stated that there was a whole lot of discussion regarding mixed uses. The staff recommendation was for a certain type of housing such as single- family residential which was a bit different sort of mixed use. Menguita stated that the future land use map was considered but was not approved. If that map was looked at, the area was low residential. This was not one of the areas for higher density and mixed use developments. Council Member Gregory asked about the additional 5% landscaping requirement as those were items that increased costs that might otherwise be put into the building. Based on the land size and the size of the building there was still a lot of green space. He questioned if the applicant was in favor of those numbers. Menguita stated that had been discussed with the applicant and he was in favor of the conditions. The Mayor opened the public hearing. The following individuals spoke during the public hearing: City of Denton City Council Minutes January 6, 2015 Page 20 Lee Allison, applicant, 4401 N. I35, Denton, 76207 - spoke in favor. Kimberly Truax, Denton - spoke in favor Geri Sams, 2611 Crestwood Place, Denton, 76209 - spoke in favor. A comment card was submitted by Diane Brown, 4607 Baytree, Denton, 76208, in favor of the proposal. The Mayor closed public hearing. Council Member Johnson motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. This Item was tabled to the January 13, 2015 Council Meeting E. DCA14 -0009A Continue a public hearing on Tuesday, January 6, 2015, and consider an ordinance amending Subchapters 5, 7, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; amending Ordinance No. 2013 -248, relating to planning and development fees and road damage remediation fees relating to gas well drilling and production activities; adding new Subchapter 22A to the Denton Development Code, relating to Oil and Gas Pipelines, Definitions, Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009A) Mayor Watts stated that this was a continuation of the public hearing from the December 16, 2014 meeting. As no recommendation had been received yet from the Planning and Zoning Commission, there would be no action from Council at this meeting. Council needed a recommendation from the Commission before it could take any action. He also noted that since this was a continuation of a public hearing, only new speakers would be allowed to speak at this meeting. The following individuals spoke during the public hearing: Gilbert Horton, Devon Energy - spoke in favor of the extension of moratorium. Linda Cole, 6376 Jim Christal Road, Denton, 76207 — spoke in opposition Mark Curwin, 2501 Cedar Springs, Dallas - spoke in opposition Matthew Fry, 1600 Highland Park Road, Denton, 76205 — spoke in opposition Comment cards were submitted by the following: Ken Gold, 2512 Natchez Trace, Denton, 76210 - support of the revisions Sandy Mattox, 4008 Vineyard, Denton, 76226 — spoke in support Council Member Ryan motioned, Council Member Gregory seconded to continue the public hearing to the January 13, 2015 Council meeting. On roll call vote, Mayor Pro Tem Engelbrecht City of Denton City Council Minutes January 6, 2015 Page 21 "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. 5. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Ryan requested a staff report or Work Session on the taxi ordinance and what could be done to better facilitate other taxi services. Mayor Watts questioned when the Council Rules and Procedures would be considered for a work session. B. Possible Continuation of Closed Meeting topics, above posted. There was no continuation of the Closed Meeting. Mayor Watts announced that the Council would be going into a recess to allow the Planning and Zoning Commission to convene and deliberate their portion of the joint public hearing. Special Called Session of the City of Denton City Council on January 6, 2015 in the City Council Chambers. 1. PUBLIC HEARING Ordinance No. 2015 -013 A. SI14 -0012 Hold a Joint City Council and Planning and Zoning Commission public hearing and consider adoption of an ordinance amending Ordinance No. 2014 -137, as amended by Ordinance Nos. 2014 -192 and 2014 -276, to extend for an additional ninety -one (91) days, or such other reasonable date, the moratorium on the acceptance, processing, and approval of certain applications for gas well permits within the corporate limits of the City of Denton, Texas, and on applications for specific use permits, site plans, development plans of any nature or type, including applications for amendments to approved or pending gas well development plats, and City of Denton City Council Minutes January 6, 2015 Page 22 on applications for Fire Code operational permits, as they relate to gas well drilling and production activities, subject to certain exemptions; providing a cumulative clause; providing a severability clause; and providing an effective date. Commissioner Reece called the Planning and Zoning Commission to order with all commissioners present. He announced that the Commission would recess into a Closed Meeting at 9:35 p.m. to consider the item below: A. ID 15 -056 Consultation with Attorneys - Texas Government Code Section 551.071. Hold a Joint City Council and Planning and Zoning Commission Closed Meeting to consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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 on federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; 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 ordinance and pending litigation styled Jerry Patterson, Commissioner, Texas General Land Office v. City of Denton, Texas, Cause No. D- 1- GN -14- 004628 currently pending in the 53rd District Court of Travis County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 09833- 431 currently pending in the 431st District Court of Denton County 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. Following the completion of the Closed Meeting, the Planning and Zoning Commission returned to the Council Chambers and reopened their joint public hearing. Mayor Watts opened the Council portion of the joint public hearing. Darren Groth, Gas Well Administrator, stated that this public hearing involved the extension of the gas well moratorium ordinance. He reviewed the information on the initial moratorium which was amended on June 17, 2014. On September 9, 2014 the moratorium was again extended. The background information on the draft set of regulations covering gas well drilling and production activities was reviewed. The proposal was for a 91 day moratorium extension or another reasonable date. Council Member Gregory asked about the procedures following the closing of the public hearing and any opportunity for action. He questioned if any action would first be taken by the Planning and Zoning Commission and then by Council. City of Denton City Council Minutes January 6, 2015 Page 23 City Attorney Burgess stated that was correct. Council needed a recommendation from the Commission prior to taking action on the extension ordinance. Council Member Engelbrecht clarified that the 91 day extension would be from the January 20th date which was the current expiration date. Groth replied that was correct. Commissioner Conner asked Mr. Horton why the industry was just now asking for an extension and why it had not happened before this time. Horton stated that they had just seen the revisions to the ordinance in December. Commissioner Bentley stated that there were pros and cons to extending the moratorium. He motioned for a 64 day extension to March 24, 2015. Commissioner Briggle seconded the motion stating that she was not sure 90 days was necessary. She wanted to adopt the ordinance but also wanted time for industry and citizens to review it. On roll call vote to extend the moratorium 64 days to March 24, 2015, Commissioners Taylor, Bentley, Briggle, Reece, and Dudowicz "aye "; Commissioners Strange and Conner "nay ". Motion passed with a 5 -2 vote. Commissioner Reece stated that the Commission recommended to Council an extension until March 24, 2015. With no other items to consider, the Planning and Zoning Commission adjourned their portion of the joint meeting. Council returned from recess to consider the Planning and Zoning Commission recommendation. Darren Groth, Gas Well Administrator, announced that the Planning and Zoning Commission had voted 5 -2 to recommend an extension of the moratorium for 64 days to a date of March 24, 2015. Council Member Ryan asked if the Council could extend the moratorium 91 days without a supermajority vote based on the recommendation for 64 days from the Commission. City Attorney Burgess stated that Council could adjust their recommendation without a supermajority vote. Mayor Watts stated that if Council set a certain number of days for the extension, Council could then choose let it expire or repeal it. City Attorney Burgess stated that was correct and when the Council approved the gas well ordinance revision, it could then repeal the moratorium. Council Member Roden felt that the consensus of the stakeholders was a 91 day of extension instead of the Commission's recommendation. City of Denton City Council Minutes January 6, 2015 Page 24 City Attorney Burgess stated that the 91 extension date would be April 21, 2015 as written in the ordinance. Council Member Roden motioned, Mayor Pro Tem Engelbrecht seconded to adopt the ordinance with a 91 day extension to April 21, 2015. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Johnson "aye ", Council Member Roden "aye" Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. With no further business, the meeting was adjourned at 10:30 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 13, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, January 13, 2015 at 3:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Pro Tern Engelbrecht, Council Member Gregory, Council Member Hawkins, Council Member Johnson, Council Member Roden, Council Member Ryan, and Mayor Watts. ABSENT: None A. ID 15 -047 Receive a report, hold a discussion regarding the 2013 Return on Investment Report of Economic Development Incentives for the City of Denton. Aimee Bissett, Director of Economic Development, stated that the City of Denton developed its original Tax Abatement Policy in 1989 to attract new businesses to Denton and to encourage existing businesses to expand. The intent was to establish public /private partnerships that would, in the long term, result in a diversified and expanded tax base for the City. The report covered the 2013 time frame. She stated that although Denton was a growing city it was also an older city with older infrastructure which made return on investment challenging. Chapter 380 of the Local Government Code gave cities the authority to provide grants or loans of city funds or services in order to promote economic development. The City had awarded these Chapter 380 grants based on performance in generating property tax or sales tax. The 2013 Return on Investment Report provided an overall look at what the City of Denton received in the way of direct benefits (property and sales tax revenues) as well as the indirect benefit of new jobs created by those companies and developments that received incentives. The 2013 report was expanded to include the ad valorem revenue for Denton County, which included both the incentives that the County had partnered with the City as well as the revenue from the incentives that the County did not invest in. The percentage abated or rebated and the terms for the County incentives may vary from the City's incentive terms. Other tools included PID, TIRZ, and TIF. Incentive Summary - Eight property tax abatements had been granted since 1998, five property tax rebates since 2004 and six sales tax rebates since 2004. The methodology for determining the incentive was cumulative sales tax and property tax revenues minus incentive payments. The two most recent property tax abatements were Peerless Manufacturing Expansion and Tetra Pak Materials Expansion. The most recent Property Tax Rebates were Safran Labinal Relocation to Denton and Mayday Manufacturing Expansion. The two most recent Sales Tax Rebates were Rayzor Ranch - Phase 2 and Golden Triangle Mall. Council discussed the various incentives and rebates. A suggestion was made to add information on what was spent on infrastructure improvements to provide a better picture of the figures. Bissett reviewed more details of the Golden Triangle Mall incentive. To date the Mall had not requested any of the incentive although they were probably were eligible to do so at this point in time. The term of the incentive began on the date that they started receiving funding. Council questioned if there were guiding principles on whether to provide the incentives. Bissett stated that those would be reviewed in next work session item. City of Denton City Council Minutes January 13, 2015 Page 2 Council discussed whether some of the incentives for sales tax involved a shift from an old store to a new store and if the sales were truly new sales and not cross over sales. Bissett reviewed the Return on Investment Report for the City of Denton. That report included cumulative property valuation, cumulative property tax generated, cumulative sales tax generated, net property and sale tax revenue, return on investment percentage and number of new jobs created. She also reviewed the benefits that other entities had such as the State, DCTA, and Denton County. Council Member Gregory suggested including the DISD in the figures for next year's report. B. ID 15 -061 Receive a report, hold a discussion and give staff direction regarding the creation of an Economic Development Incentive Fund for the City of Denton. Aimee Bissett, Director of Economic Development, stated that the objectives for her discussion would be to review the incentive policy and authority under Chapter 380 of the Texas Local Government Code, discuss options for the creation of an Incentive Fund, receive initial direction from Council regarding the best path forward for bringing additional information and possible future discussion topics. Chuck Springer, Director of Finance, presented the Accounting Standards that would be used for a proposed Economic Development Incentive Fund. The Governmental Account Standards Board set the rules for the City's use of General Fund Balance or designation of Special Revenue Funds. The Council could commit a portion of the General Fund Balance for economic development incentives or restrict/commit specific revenues for economic development incentives. He reviewed committed fund balance procedures, special revenue fund procedures, revenue options and impacts. Council questioned if there was a set amount needed for such a fund. Bissett stated that some competing cities might have $9 million or more set aside due to their 4A or 4B sales tax fund which Denton did not have. Anything set aside would be better than what currently was not available. It was a matter of the Council's comfort level on what to set aside. Next steps in the process included direction from Council on if/how they wanted to proceed, preferred options, a target amount annually /cap for fund total, and specific benchmarks /requirements for eligibility. Mayor Watts stated he was in favor of such a program as it was the difference between being chosen for a new development project and not being chosen. There was a difference between choosing a project and being chosen by a project. Such a fund would minimize the effect on the General Fund at the beginning to set up the fund. Mayor Pro Tem Engelbrecht stated that he was in favor of targeting those companies with higher paying jobs to encourage higher types of housing. Council Member Johnson stated that the objective was to have another tool to get development to look at Denton and have that money available when needed. City of Denton City Council Minutes January 13, 2015 Page 3 Council Member Hawkins stated that he would be in favor of developing such a fund in order to have the same tools as other cities in order to compete for new developments. Council Member Gregory suggested that future reports might be looked at in terms of retention of current businesses or how to support companies here who might want to grow. Council direction was to create the fund partially from the mixed beverage sales tax above projections for growth, have a policy discussion to make sure the fund was protected and used only for projects the City wanted rather than developers coming to the City for funding, contribute to current businesses, and encourage high wage jobs. A future report was requested on expansion and retention efforts. Council Member Gregory suggested building the fund with the expiring 380 agreements as opposed to dedicated revenue fund. Mayor Watts recapped that staff should look for an initial way to have the least impact on the General Fund through funding such as the liquor tax, expiring 380 agreements or other expiring incentives. Staff should present a menu of different types of options, suggestions, and recommendations on an amount and the impact moving forward on the General Fund. Guiding principles to work from should also be developed. C. ID 15 -049 Receive a report, hold a discussion and give staff direction regarding aesthetics related to the 35Express Project. Mark Nelson, Director of Transportation, stated that staff was looking for direction from Council regarding the aesthetic components for public art and the intersection and pedestrian crossing at the North Texas Blvd. bridge. His report would cover a review of the project, aesthetic concepts, pedestrian enhancements and next steps. The North Texas Blvd. bridge was the only bridge to be constructed to the ultimate design in Phase I_ He reviewed the meetings that were held where the designs had been discussed and showed the original TxDOT color scheme at the Gateway corridor. A representation of the proposed branding located on the bridge with the city name and UNT was shown. TxDOT was not sure that back lighting could be done on the names on the bridge. The pictures of the Denton medallion were also shown Staff was looking to get to the 85% design phase and forward to a vendor to get it completed. The base line TxDOT treatment for pedestrian infrastructure was shown as well as the North Texas Blvd. bridge enhancements which included brick veneer pedestrian barrier wall - through lanes, bollards for a Texas Turnaround, pedestrian lighting and brick banding and smooth center pathway. Consensus of the Council was to proceed with the staff proposal. D. SI15 -0001 Receive a report; hold a discussion, and give staff direction regarding proposed criteria for Tree Fund Expenditures and initial tree planting projects. City of Denton City Council Minutes January 13, 2015 Page 4 Haywood Morgan, Urban Forester, presented information on tree fund expenditure criteria and proposed planting projects. The tree code consisted of presentation and mitigation. Mitigation included tree planting, tree fund, tree trusts and alternative tree plan. Tree Funds - the permitted uses of the tree fund as noted in the Denton Development Code were reviewed as well as the administration of the fund. The development of the criteria for tree fund expenditure was vetted with the Planning and Development Department, Keep Denton Beautiful, and Parks and Recreation. Eight general considerations /criteria were developed with special considerations based on permitted uses. A survey was sent to the DFW area and other larger cities to determine the effectiveness of other cities' tree fund programs and how they managed their expenditures. Tree Fund Proposed Expenditure Criteria 1 - Full Project Cost including tree cost, water tap, water impact fees, irrigation system, installation labor and materials and ongoing maintenance. Council Member Johnson questioned why the City was paying a tap fee and impact fee. That was paying the city by the city and was not part of why the fee was in place. Jim Coulter, General Manager -Water Administration, stated that the impact fee was for new demand on the system and if not collected, it would have to be distributed across the City to the ratepayers. City Manager Campbell stated that it could be waived but would still have to be paid. The City could pay the fee through the General Fund to the Water Fund instead of using the tree funds. Council Member Gregory felt that the tree plantings would only have to be irrigated for a few areas. The trees should be native to the area and once established should be able to have the irrigation turned off. He questioned how much impact fee there would be for a temporary tap. Morgan stated that the watering would only be needed to get the trees established but if there was a period with no rain, even mature trees would be affected as well as new trees. With a system already in place it could be used in those circumstances. Council Member Roden requested examples of impact fee on x number of trees and what public property would be used which might already have the infrastructure in place. Council Member Gregory stated that he would also like to see costs where trees were not practicable but instead had an irrigation bag around the tree that were manually filled until the tree no longer needed the additional water. Mayor Watts asked if ongoing maintenance would be taken out of tree fund for parks. Morgan stated that possible costs might be done through a private contractor as opposed to the Parks Department performing the maintenance. Staff was looking at contracting out the work to get the trees planted to expedite the process. Proposed Criteria 2 — Other Efforts - Sources Leveraged- the use of grants and neighborhood association contributions towards an adjacent parks or an anticipate project by a city partner. City of Denton City Council Minutes January 13, 2015 Page 5 Proposed Criteria 3 — Community Involvement — projects that had the support and involvement of neighborhoods and /or community groups would be considered. Proposed Criteria 4 — Residential requests - the number of requests from local residents for a specific project would be considered. Proposed Criteria 5 — Staff - identified needs - projects identified by staff for shade for recreation/mobility paths or traffic calming measures. Proposed Criteria 6 - Consistency with Existing Plans — alignment with other approved city plans such as the Denton Comprehensive Plan or Sustainability Plan. Proposed Criteria 7 - Community Impact - residential benefits of the project. Proposed Criteria 8 - Tree Fund Expenditure Distribution - biannual distribution of existing and future tree fund dollars such 75% tree planting and maintenance, 15% for wooded property to preserve, 5% city -wide tree inventory and 5% education of citizens and developers. Council Member Gregory stated that before he would want to commit to those percentages, he would like a meeting with Real Estate to see if there were any tree stands already identified to preserve. If there was not enough to purchase a substantial piece of property, then the percentages might have to be changed. Mayor Pro Tem Engelbrecht stated that 75% was about $2 million and questioned how many trees could be purchased for that amount of money. He questioned the total cost per tree and how many trees could plant for that amount. Morgan stated that the 75% was determined from a previous council discussion which was a 3 -1 or 4 -1 ratio. Council Member Johnson stated that at the current pace, the fund was growing $600,000 per year so Council needed to think about what it would look like in future years. The money needed to be spent at a rate that would be coming in and not maintain a high balance. Council Member Ryan suggested having a not to exceed amount for the bottom two areas and keep funding for other two areas. Council Member Hawkins stated that he would like to do all of the proposed projects which were included in the materials. Morgan continued with Special Consideration by Permitted Uses which was composed of several components. Component A - Tree planting and maintenance through partnership efforts with other entities such as Keep Denton Beautiful, the National Arbor Day Foundation and the American Forest. Compliance would be achieved with approved species and recommendations. City of Denton City Council Minutes January 13, 2015 Page 6 Component B — Purchase of wooded property to preserve in strategic locations adjacent to wooded environmentally sensitive areas, park land and trails. Species composition of property to be preserved should be oak and cedar elms versus mesquite and locust trees. Component C - Perform and maintain a city -wide tree inventory; reduce city liability by identifying dead or hazardous trees; assist in planning for future insect and disease management; and improve maintenance efficiencies and thoroughness of in -house tree work. Council Member Roden stated that the last Council discussion was to not pay the cost for an inventory and that the sense was that the survey was connected to a city -wide assessment of canopy and species. This current recommendation was for a survey of trees on city property with maintenance and disease control and was a different concept from before. Morgan stated correct and that these would be some of the benefits from an inventory. Council Member Roden stated that if an amount was needed, Council would need to know whether the survey would be an inventory or maintaining city controlled trees. Morgan stated that the last discussion was overarching but these were benefit guidelines. Mayor Watts stated that the last time the survey was for an entire city inventory and questioned if the suggestion now was for city owned property or for only public property. Morgan stated that it would be more focused on city owned property which had to be maintained by the city. Council Member Roden stated that was a different scope and suggested exploring partnerships with UNT for a tree inventory to get back to the original scope of the inventory. Morgan stated that staff had discussed with UNT the possibility of a small inventory to see what kind of data could be derived. Mayor Pro Tem Engelbrecht felt that it was important to get some handle on what was available city -wide if the goal was to increase the city canopy. Component D - Educate citizens and developers on the benefits and value of trees by expanding existing programs or events, partnering with DISD to incorporate educational programs for DISD students, communicating with stakeholders, and building off of industry best practices for developing with trees. Council Member Johnson stated that if trees were important, there was a need to be flexible with development standards in order to preserve tree stands in a large residential development. Mayor Pro Tem Engelbrecht suggested looking at particular aspects such as shade for the parking lots, look at practicable aspects for what the trees would be used for. Council Member Gregory suggested including bike /walking trails on the list of other places for trees. City of Denton City Council Minutes January 13, 2015 Page 7 Morgan continued that a Tree Fund Expenditure Analysis template provided consistent documentation of proposed projects and would be managed within the proposed standardized parameters to promote proactive management of the Fund. Proposed Planting Projects- (1) Carl Young Park with the planting of 43 trees at a cost of $52,000; (2) North Pointe Park with the planning of 37 trees at a cost of $41,000; (3) North Lakes Park with a planting of 75 trees at a cost of $79,000; and (4) South Lakes Park with the planting of 115 trees at a cost of $176,000. Mayor Watts stated that the first three projects cost over $1000 per tree and questioned how they were different from South Lakes Park. He felt it seemed excessive in the costs. Morgan stated that some of the costs were distributed over more trees than on a smaller project. Mayor Watts stated that he would like to see what went into the projected costs for the projects. Mayor Pro Tem Engelbrecht suggested an experiment to take a plot of 30 trees and not do anything with them in terms of water and look at inventive ideas on how to do this project. Morgan stated that another consideration was the costs coming from a contractor. Mayor Watts requested an Informal Staff Report on the costs of the tree plantings. Council Member Hawkins stated that he liked the idea of volunteers to form a tree club to help get the tree costs down for the plantings. Proposed Expenditure Authorization — Morgan stated that the proposal also included a fifth Tree Fund Expenditure to authorize $100,000 funding for FY 14 -15 for funding for fall planting projects that were yet to be determine; assist Keep Denton Beautiful in expanding Denton's Arbor Day events, the Denton Redbud Festival and Children's Arbor Day programs events this spring; and the purchase of educational materials as needed. Council Member Gregory suggested modifying the funding to use money to give away trees to the citizens instead of only once a year. He requested an Informal Staff Report on the money in the tree fund from January 2014 to present. He also suggested spending $750,000 on planted trees by the end of 2015 with documentation of a breakdown of projects per tree costs. Modify the $750,000 on the planting of trees to include free residential trees. Mayor Pro Tem Engelbrecht requested that part of the report include the optimum tree planting times. He also requested to include getting with Keep Denton Beautiful for a program of 200- 300 trees with monitoring of the trees for at least 3 years to monitor health of the trees. Council Member Ryan suggested to also consider a rebate program with tree plants. Buy local to encourage planting of local trees. Mayor Watts stated that he would like to see a report on the cost per tree. City of Denton City Council Minutes January 13, 2015 Page 8 Council Member Gregory stated that he would like to see a breakdown first before making a decision on how much of the fund to use. Morgan stated that the staff report would include (1) costs for each of the proposed projects, (2) possibly increasing the amount of funding, (3) exploring an option on how to facilitate trees on private property, and (4) a possible rebate program. Council Member Ryan suggested setting up a pump for irrigation at North Lakes and South Lakes Park. Emerson Vorel, Director of Parks and Recreation, stated that there might be a water rights issue as the water belonged to Dallas plus a return flow issue. Mayor Watts requested an idea on the dollar amount needed for educational materials as well. Council Member Roden also suggested considering the East Hickory Street Project and street trees in the downtown area and not just trees in the parks. Council recessed the Work Session to convene into the Public Hearing at 6:50 p.m. A. DCA14 -0009b Continue a public hearing on Tuesday, January 13, 2015, and consider an ordinance amending Subchapters 5, 7, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; amending Ordinance No. 2013 -248, relating to planning and development fees and road damage remediation fees relating to gas well drilling and production activities; adding new Subchapter 22A to the Denton Development Code, relating to Oil and Gas Pipelines, Definitions, Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date. Mayor Watts stated that this was a continuation of the public hearing from January 6, 2015. City Manager Campbell stated that the item continues as a public hearing as a result of no recommendation from the Planning and Zoning Commission to Council. Staff was suggesting to continue the item to the February 3rd Council meeting in anticipation of a recommendation. If there was no recommendation by that time the public hearing would need to be continued again. Council Member Roden asked if a citizen could speak a second time at this public hearing. Mayor Watts stated that the public should speak on any changes. He felt that before a date was set again to consider this item, everything should be ready to be considered. Do all at once rather than in pieces. City Attorney Burgess stated that the Planning and Zoning Commission had closed their public hearing and Council was just waiting for their recommendation. Mayor Watts questioned that since the Planning and Zoning Commission had closed their public hearing, if they were to have any additional amendments would those have to be considered in an additional public hearing at the Commission level. City of Denton City Council Minutes January 13, 2015 Page 9 City Attorney Burgess stated that the public hearing at the Commission level was closed. If any additional amendments were within the issues currently covered in the ordinance, the matters could move forward. Some of the items might not be zoning items and not have to go to the Commission. Council Member Gregory stated that other public hearings that had been considered multiple times had been placed on future agendas under Individual Items to Consider and anyone could speak even if they had spoken at the public hearing. City Attorney Burgess stated that was correct and that there would be other opportunities to participate. Council Member Gregory stated that he had compiled a list of various comments on what needed to change. He felt that the current ordinance addressed some of those items but some of the amendments he wanted would require wording changes. He did not want to do that during a meeting and would like time to have items addressed to amendments to the ordinance. Rather than continue the item to a certain date, he suggested continuing it to an event certain such as when the Planning and Zoning Commission provided a recommendation rather than a date. Once Council closed the public hearing he was not sure Council would be ready to act as they might want to add more amendments. He would not be comfortable closing the public hearing, making amendments and then not allowing speakers on those amendments. Council Member Johnson stated that he did not disagree but this was one public hearing and he did not want to set a precedent at one public hearing that citizens could speak more than the allotted time so that in the future at any given topic citizens would have the have right to speak multiple times at a public hearing. City Attorney Burgess stated that from the perspective of procedure and fairness, she would suggest leaving the public hearing open to any changes that might come forward. With regard to issues concerning the Council's rules, Council had flexibility in the application of those rules. Should Council desire to allow additional comments they were within the description to do so. Council Member Roden felt that the community had seen the suggested ordinance and Council had held a meeting with the Commission. He agreed that at some point policy issues needed to be vetted. He suggested making a placeholder on every work session to allow any changes to be discussed and not have it on the regular session until it was felt that Council had vetted the information and was ready to present it back to the public for their input. Mayor Pro Tem Engelbrecht stated that this was not a typical zoning case and was not a fixed situation. There were court activates, legislative actives, Council and citizens gathering more information as it became available. He agreed to get a recommendation from Planning and Zoning. Council could make any modifications it deemed appropriate and present that to citizen as a whole packet. Mayor Watts felt that this was not a result of substance but a result of process. Council had a joint meeting with Planning and Zoning due to a timing issue which went outside the normal process. If citizens had spoken in the past this was a unique situation to allow them to speak City of Denton City Council Minutes January 13, 2015 Page 10 again. Council could not take formal action until they had a recommendation from Planning and Zoning. Council Member Roden stated that citizens who spoke before would be able to do so again. Mayor Watts stated yes that would be the process. The following individuals spoke during the public hearing: Sharon Wilson, 101 Greenville, Allen, 75013 — require ventless flowback tanks, vapor recovery, establish setbacks, require gas buster emissions be routed through flare, require third party air monitoring paid for by a gas company, prohibit waste pits, and no flaring unless emergency conditions as determined by the Railroad Commission. Carol Soph, 1620 Victoria, Denton, 76209 — spoke in favor with conditions Ed Soph, 1620 Victoria, Denton, 76209 - need peer review and engineering studies for poorly regulated drilling; no health providers were consulted and better regulations were needed than those listed in the proposed ordinance, strengthen public safety and health Mark McCord, 616 Colorado, Celina, 75009 - not in favor of the provision that the Planning and Zoning Commission had final authority for waiver on a variance and that provision should rest with the Council as they were the elected officials. If the Commission denied a variance it should go to Council for a 3/4 supermajority vote. Taylor Cole, 6376 Jim Christal, Denton, 76206 - against the proposed setbacks for existing well sites Cathy McMullen, 805 Ector, Denton, 76201 — consider opposing a new bill in the Energy Committee that would make it difficult for cities to regulate oil and gas in the future, ordinances needed to be ones that could live with forever as the City would not be able to change it later, in favor of vapor recovery, no pits, no venting, flaring valves, and consideration of health impacts. Comment cards were received from: Diana Robinson, 2508 Rockwood, Denton, 76209 Ken Gold, 2512 Natchez Trace, Denton, 76210 Rhonda Love, 1921 Hollyhill, Denton Teralynn Hunter, 118 Bernard, Denton Council discussed setbacks in industrial setting and industrial setting with associated office uses. Council Member Gregory motioned, Council Member Roden seconded to continue the public hearing to an event certain, that being the next regular meeting following the recommendation from the Planning and Zoning Commission. On roll call vote, Mayor Pro Tem Engelbrecht "aye ", Council Member Gregory "aye ", Council Member Hawkins "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Ryan "aye ", and Mayor Watts "aye ". Motion carried unanimously. City of Denton City Council Minutes January 13, 2015 Page 11 Council returned to the Work Session Room and reconvened the Work Session discussions. E. ID 15 -058 Receive a report, hold a discussion, and give updated staff recommendation regarding a transportation user fee. Jim Coulter, General Manager - Water Administration, stated that Denton was currently experiencing an annual 2.5% population growth rate. While street funding was beginning to stabilize deterioration of city streets, the growing population was increasing the impact of wear on the street system. The effect of that was quantified using an Overall Condition Index (OCI) score. OCI scores ranged from 0 (worst) to 100 (brand new). The current funding level practice would stabilize OCI in the upper 50s. Bond funding in the 2014 program provided $24 million for reconstructing existing streets. Remaining funds were allocated to roadway widening, traffic signals, etc. There was also funding from the 2012 bond program which could only be used for reconstruction and not for overlaying, micro seal or crack seal. Bond funds would help with failed streets but not for maintenance. Council discussed the using of franchise fees for part of street maintenance. Coulter reviewed streets funding as a percent of total General Fund by decade. Council discussed the funding the street maintenance over the years, the need for funding as the OCI rating went down, and inflation in terms of needed funding to maintain the OCL Coulter noted that street funding had slipped below both Planning and Libraries funding by the year 2010. Coulter presented four options for street funding. They included (1) maintain streets at the established OCI level, (2) reallocate funding, (3) raise revenue via an existing system and (4) raise revenue via a Transportation User Fee. The pros and cons for reallocating funding by reversing the trend of diminishing streets investments was reviewed. Option 3 involved raising revenue by using existing systems. Using property tax might not equitably distribute street costs to users, sales tax was capped due to state law and prior decisions to fund DCTA and Return on Investment/Franchise Utility Fees passed fees on to utility customers through increased rates. Option 4 which was to raise revenue with a transportation user fee had its own set of pros and cons. Those pros and cons were reviewed for Council. Council Member Gregory requested an Informal Staff Report regarding cost estimates on how to set up the program, ongoing costs and the tie in with the drainage fee. Council Member Johnson questioned how the costs to the users of the streets were determined. Coulter stated that the Manual for Trip Factors was used to determine what a residential unit, gas station, business, etc. would generate. The Trip Generation Manual served as the standard reference for calculating impact based on trip generation. Council Member Johnson questioned what percent of every dollar that came in would be for maintaining the program. Coulter stated that it was in the 15% range. City of Denton City Council Minutes January 13, 2015 Page 12 Council Member Johnson felt that not enough money was asked for with the bond program and now staff was coming back with a tax to make up the difference. If more money was needed for streets, staff needed to indicate what was needed and do a bond. All this was doing was raising the cost of doing business in the city and was essentially another tax. Council Member Roden stated that this was not a tax as it did not have the legal criteria for a tax. If Council went to the voters with too much for street repair it would increase property tax. He suggested a hybrid system which would look at revenue from a franchise fee and develop a plan to ultimately dedicate to a maintenance fund plus a user fee. Reallocate a franchise fee and look at user fee. Council Member Hawkins stated that some sacrifices might need to be made in order to find funding and take away from other areas. He was not sure if he was in favor of a fee at this time. Council Member Gregory suggested going to the voters regarding a road maintenance fee and if they voted it down, then reallocate funds. Mayor Pro Tem Engelbrecht stated that the issue should be divided into street maintenance and street rebuilding. Rebuilding was done with bond money which could not be used for street maintenance and that was a way to present the issue to the public. Council Member Johnson stated that technically this was a tax so call it a tax and not a fee. He felt it needed to go to the citizens as they just voted for bonds. City Attorney Burgess stated that there were legal opinions noting problems in sending issues to voters for a non - binding referendum. Council Member Johnson stated that he was not saying it should be non - binding but rather let them vote on it. Council Member Roden stated that he was in favor of continuing to explore the options. Mayor Watts stated that he was not in favor of this type of a fee. There was a problem with the streets which had to be fixed but felt that to solve the problem with such a tax was not appropriate. Streets had always been under General Fund funding and to put it on a utility bill was too easy and took the pressure off on how to prioritize funding. He felt this was the last resort. If streets were the number one priority per the citizens it needed to be shown in the budget. He could only support this as a last resort as concrete ways for other funding had not been explored. Council Member Hawkins agreed with the Mayor and stated that it was a difficult decision on where to cut other funding. If streets were at the top cuts would need to come from different places. Mayor Pro Tem Engelbrecht was not sure how much fund shifting could be done. Council Member Gregory stated that the real question was who paid. Either let the roads deteriorate or someone had to pay. Pay either by raising taxes, charging a fee or taking away City of Denton City Council Minutes January 13, 2015 Page 13 services. When cutting services, those users of that service would be the ones paying for the streets. When using a user fee, the cost would be shared. Council Member Johnson felt that the discussion should be about where to spend the increase instead of where cuts were needed. He saw it as not cutting but rather where to put more of the increase and that would be to streets. Council's job was to determine where to spend more rather than where to cut. Council Member Roden suggested making a clear goal with the OCI rating to set a standard. At the end of the discussion develop a 10 -15 year plan to reach that goal with identified funding on how to get there. Consensus of the Council was to look at all options available with analysis before looking at a user fee. They were not in favor of a user fee at this time. F. 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. This item was not considered. Following the completion of the 2nd Tuesday Session, the City Council convened in a Closed Meeting at 9:50 p.m. to consider the specific items listed below under the Closed Meeting section of this agenda. Closed Meeting A. ID 15 -048 Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies relating to selecting and acquiring generation resources for the City; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. City of Denton City Council Minutes January 13, 2015 Page 14 B. ID 15 -063 Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues regarding an incentive agreement with Metzeler Schaum, GmbH. This discussion shall include commercial and financial information the City Council has received from Metzeler Schaum, GmbH which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentive where the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. C. ID 15 -067 Consultation with Attorneys - Under Texas Government Code Section 551.071; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Consult with the City's attorneys regarding the present status of pending litigation styled Linda Marie Casias Roth, et al v. City of Denton, Texas, Cause No. 2012- 60839 -393, now pending before the 393rd Judicial District Court of Denton County, Texas; and discuss, deliberate and provide the City's attorneys with direction and any recommendations regarding such legal matter. A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Relating to this same issue, discuss, deliberate, and receive information from staff, and provide direction pertaining to the acquisition of real property interests located in the R. Beaumont Survey, Abstract Number 31, located generally in the 1200 block of North Bonnie Brae Street, City of Denton, Denton County, Texas. D. ID 15 -066 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 the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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; current and proposed extension to, moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; 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 ordinance and pending litigation styled Jerry Patterson, Commissioner, Texas General Land Office v. City of Denton Texas, Cause City of Denton City Council Minutes January 13, 2015 Page 15 No. D- 1- GN -14- 004628 currently pending in the 53rd District Court of Travis County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 09833- 431 currently pending in the 431st District Court of Denton County 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. With no further business, the Council reconvened in Open Session at 11:53 p.m. and adjourned the meeting. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -157, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Denton Municipal Electric CM/ ACM: Howard Martin, Utilities, 349 -8232 Date: February 17, 2015 SUBJECT Consider adoption of an ordinance of the City Council of Denton, Texas authorizing the City Manager to execute "Project Utility Adjustment Agreements (Owner Managed)" for TXDOT - CDA- U- 35 -OM -IH 35E; and "Utility Adjustment Agreement Amendments (Owner Managed)" form TXDOT CDA- U- 35A -OM -IH 35E; facilitating and authorizing electric utility relocations for the Interstate Highway 35 project, in substantial conformity with the attached two numbered Texas Department of Transportation agreements; with the developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and The Lane Construction Company; and The Texas Department of Transportation; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND On October 3, 2013 a ground breaking was held at Copperas Branch Park in Highland Village to herald the expansion of I -35 East along a 28 mile corridor from Highway 635 in Dallas, north to Highway 380 in Denton, Texas. This project is being referred to as I35 Express. At the October 1, 2013 Council Work Session, Mark Nelson (City of Denton - Director of Transportation) introduced Ms. Kimberly Sims, Public Information Manager, of the I35 Express project who provided Council a project overview and the outreach and communication plans for I35 Express. This project is being developed by AGL Constructors which is a consortium comprised of Archer Western Contractors, LLC, Granite Construction Co., and The LANE Construction Company. Denton Municipal Electric (DME) Engineering has met with representatives of AGL Constructors regarding this project and has identified, at this time, eight (8) locations where DME's facilities will be in conflict with the proposed widening. However, the I35 Express project is a design/build; therefore, additional locations of conflict could be identified once TxDOT, or their contractor, begins engineering review. Areas in which DME facilities are covered by an easement, TxDOT is required to make DME whole for loss of assets (the easement) and the cost to relocate our facilities within the new rights -of -way. TxDOT will reimburse DME only on actual costs associated with relocations that fit the criteria for reimbursement. In preparation of negotiations on work and the reimbursable costs associated with I35 Express, AGL Constructors has requested the City of Denton (City) secure approval of the language and form contained within Exhibits B and C prior to beginning construction. Once plans adequate are provided and DME completes its design, the required work and reimbursable value will be negotiated with AGL Constructors. Exhibits B and C will be filled out at that time to reflect the agreements. Securing prior approval of the City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -157, Version: 1 contract language shall enable the City Manager to execute the agreement(s). DME will manage the relocation of its facilities located along Interstate 35 E and thus will be referred to within the agreement(s) as "Owner Managed ". After DME consulted with our utility attorney it was recommended to move forward with obtaining PUB and City Council approval for an ordinance to utilize The State of Texas standard TxDOT Project Utility Adjustment Agreement and Agreement Amendment templates attached. The Exhibits attached to this AIS have been reviewed and approved by City legal staff for conformity. OPTIONS 1. Adopt the ordinance in its current form. 2. Reject the ordinance as presented 3. Table the item for further discussion, make recommendations to staff, or both. RECOMMENDATION Staff recommends adoption of the ordinance authorizing the Project Utility Adjustment Agreement language as presented. ESTIMATED SCHEDULE OF PROJECT Work to begin upon approval of the agreement. Final completion is to be coordinated with TXDOT's construction schedule. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The PUB recommended adoption of the attached ordinance on February 9, 2015. FISCAL INFORMATION The City of Denton will be substantially reimbursed for the work required according to the TXDOT agreement (s). BID INFORMATION N/A EXHIBITS 1. Exhibit l: [Ordinance] TXDOT Public Utility Adjustment Agreement -I -35 Project -DME -Owner Managed -mc 2. Exhibit 2: [Contract] TxDOT -DME Electric Facilities- CDA- U- 35 -OM -IH 35E me 3. Exhibit 3: [Amendment] TxDOT -DME- Electric - Facilities- Amendment 6 -1 -IH 35E UAAA (Owner Managed) (2) -mc Respectfully submitted: Phil Williams General Manager Prepared by: Jerry Fielder, P.E. Division Engineering Manager - Distribution City of Denton Page 2 of 2 Printed on 2/12/2015 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE "PROJECT UTILITY ADJUSTMENT AGREEMENTS (OWNER MANAGED)" FORM TXDOT - CDA- U- 35 -OM -IH 35E; AND "UTILITY ADJUSTMENT AGREEMENT AMENDMENTS (OWNER MANAGED)" FORM TXDOT- CDA-U-35A-OM-IH 35E; FACILITATING AND AUTHORIZING ELECTRIC UTILITY RELOCATIONS FOR THE INTERSTATE HIGHWAY 35 PROJECT, IN SUBSTANTIAL CONFORMITY WITH THE ATTACHED TWO NUMBERED TEXAS DEPARTMENT OF TRANSPORTATION AGREEMENTS; WITH THE DEVELOPER, AGL CONSTRUCTORS, WHICH IS A CONSORTIUM COMPOSED OF ARCHER WESTERN CONTRACTORS, LLC, GRANITE CONSTRUCTION CO. AND THE LANE CONSTRUCTION COMPANY; AND THE TEXAS DEPARTMENT OF TRANSPORTATION; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Interstate Highway 35 East widening project (the "Project ") involves and flows through the City of Denton, Texas ( "City "); the Project entails, among other things, the relocation of electric utility facilities and infrastructure owned by the City, and operated by Denton Municipal Electric ( "DME "), the City's municipally -owned electric utility; and WHEREAS, pursuant to a "Comprehensive Development Agreement" ( "CDA ") which has been previously entered into by and between the Texas Department of Transportation ( "TxDOT ") and the Developer; the Developer has undertaken the obligation to design, construct, and potentially maintain the Project, which includes the removal, relocation, or other necessary adjustment of existing utilities facilities and infrastructure that are impacted by the Project; and WHEREAS, by the Project Utility Adjustment Agreement ( "PUAA ") to be entered into by and between the City and the Developer, and to be approved by TxDOT, such agreement provides for the adjustment of certain electric utilities owned and operated by the City and DME; and WHEREAS, should it become necessary to modify the PUAA to further add to or adjust the City's electric facilities and infrastructure, the City and Developer must enter into a Utility Adjustment Agreement Amendment ( "Amendment to PUAA "), which covers adjustments not covered under the original PUAA, to provide for the terms and conditions which are required by such Amendment to PUAA; and WHEREAS, DME estimates that there are approximately ten (10) separate projects contemplated by City. and Developer regarding the City's electric facilities and infrastructure, and that these separate projects are to be entered into at different times; therefore, the City and Developer have agreed to the terms of the "Project Utility Adjustment Agreement" (Owner Managed), Form TxDOT- CDA- U- 35 -OM -IH 35E and also to the terms of the "Utility Adjustment Agreement Amendment" (Owner Managed), Form TXDOT- CDA -U- 35A -OM -IH 35E, to serve as the Forms of agreement to facilitate and expedite completion of the Project; and WHEREAS, the City Council finds that this ordinance is in the public interest and accordingly; NOW THEREFOR THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the Preamble to this ordinance are hereby incorporated by reference into this Ordinance. SECTION 2. The City Manager, or his designee is hereby authorized to execute Project Utility Adjustment Agreements ( "PUAA ") and Utility Adjustment Agreement Amendments (Amendment to PUAA ") for electric facilities and infrastructure relocations for the Interstate Highway 35 Project, with the Developer, AGL Constructors, LLC; each such Agreement to be approved by the Texas Department of Transportation, from time -to -time, as the need arises, in substantially the form of the Agreements attached hereto as Exhibits "A" ( "PUAA ") and `B," ( "Amendment to PUAA ") which are incorporated herein by reference. SECTION 3. The City Manager, or his designee is hereby authorized to expend funds as provided for in the attached "Project Utility Adjustment Agreements," as well as any "Utility Adjustment Agreement Amendments" at the time these documents are executed, delivered and approved. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY 0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 1 of 18 Rev. 06/13 County: ROW CSJ No.: Const. CSJ No.: Highway: Limits: Fed. Proj. No.: PROJECT UTILITY ADJUSTMENT AGREEMENT (Owner Managed) Agreement No.: -U- THIS AGREEMENT, by and between , hereinafter identified as the "Developer ", and the City of Denton, Texas, a Texas Municipal Corporation hereinafter identified as the "Owner ", is as follows: WITNESSETH WHEREAS, the STATE OF TEXAS, acting by and through the Texas Department of Transportation, hereinafter identified as "TxDOT ", is authorized to design, construct, operate, maintain, and improve turnpike projects as part of the state highway system throughout the State of Texas, all in conformance with the provisions of Chapters 201, 203, 222, 223, 224 and 228, Texas Transportation Code, as amended; and WHEREAS, TxDOT proposes to construct a project identified as the IH 35E Widening Project (the "Project "); and WHEREAS, pursuant to that certain Comprehensive Development Agreement by and between TxDOT and the Developer with respect to the Project (the "CDA "), the Developer has undertaken the obligation to design, construct, finance, operate and maintain the Project and adhere to all requirements in the CDA; and WHEREAS, the Developer's duties pursuant to the CDA include causing the relocation, removal, or other necessary adjustment of existing utilities impacted by the Project (collectively, "Adjustment "), subject to the provisions herein; and WHEREAS, the Project may receive Federal funding, financing and /or credit assistance; and WHEREAS, the Developer has notified the Owner that certain of its facilities and appurtenances (the "Owner Utilities ") are in locational conflict with the Project (and /or the "Ultimate Configuration" of the Pro)ect), and the Owner has decided to undertake the Adjustment of the Owner Utilities and agrees that the "Project" will be constructed in accordance with §203.092, Texas Transportation Code, as amended, Rule 21.23 of Title 43 Tex. Admin. Code, and 23 CFR 645A (Utility Relocations, Adjustments and Reimbursement); and WHEREAS, the Owner Utilities and the proposed Adjustment of the Owner Utilities are described as follows [insert below a description of the affected facilities (by type, size and location) as well as a brief Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 2 of 18 Rev. 06/13 description of the nature of the Adjustment work to be performed (e.g., "adjust 12" waterline from approximately Highway Station 100 +00 to approximately Highway Station 200 +00')]: and WHEREAS, the Owner recognizes that time is of the essence in completing the work contemplated herein; and WHEREAS, the Developer and the Owner desire to implement the Adjustment of the Owner Utilities by entering into this Agreement. AGREEMENT NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements of the parties hereto and other good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged, the Developer and the Owner agree as follows: Preparation of Plans. [Check one box that applies.-] ❑ The Developer has hired engineering firm(s) acceptable to the Owner to perform all engineering services needed for the preparation of plans, required specifications, and cost estimates, attached hereto as Exhibit A (collectively, the "Plans "), for the proposed Adjustment of the Owner Utilities. The Developer represents and warrants that the Plans conform to the most recent Utility Accommodation Rules issued by the Texas Department of Transportation ( "TxDOT "), set forth in 43 Tex. Admin. Code, Part 1, Chapter 21, Subchapter C, et seq. (the "UAR "). By its execution of this Agreement or by the signing of the Plans, Owner hereby approves and confirms that the Plans are in compliance with the "standards" described in Paragraph 3(d). ❑ The Owner has provided plans, required specifications and cost estimates, attached hereto as Exhibit A (collectively, the "Plans "), for the proposed Adjustment of the Owner Utilities. The Owner represents and warrants that the Plans conform to the UAR. By its execution of this Agreement theDeveloper hereby approves the Plans. The Owner also has provided to the Developer a utility plan view map illustrating the location of existing and proposed utility facilities on the Developer's right of way map of the Project. With regard to its preparation of the Plans, Owner represents as follows [check one box that applies]: ❑ The Owner's employees were utilized to prepare the Plans, and the charges therefore do not exceed the Owner's typical costs for such work. ❑ The Owner utilized consulting engineers to prepare the Plans, and the fees for such work are not based upon a percentage of construction costs. Further, such fees encompass only the work necessary to prepare the Plans for Adjustment of the Owner Utilities described herein, and do not include fees for work done on any other project. The fees of the consulting engineers are reasonable and are comparable to the fees typically charged by consulting engineers in the locale of the Project for comparable work for the Owner. 2. Review by TxDOT. The parties hereto acknowledge and agree as follows: (a) Upon execution of this Agreement by the Developer and the Owner, the Developer will submit this Agreement, together with the attached Plans, to TxDOT for its review and Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 3 of 18 Rev. 06/13 approval as part of a package referred to as a "Utility Assembly ". The parties agree to cooperate in good faith to modify this Agreement and /or the Plans, as necessary and mutually acceptable to all parties, to respond to any comments made by TxDOT thereon. Without limiting the generality of the foregoing, (1) the Owner agrees to respond (with comment and /or acceptance) to any modified Plans and /or Agreement prepared by the Developer in response to TxDOT comments within fourteen (14) business days after receipt of such modifications; and (ii) if the Owner originally prepared the Plans, the Owner agrees to modify the Plans in response to TxDOT comments and to submit such modified Plans to the Developer for its comment and /or approval (and re- submittal to TxDOT for its comment and /or approval) within fourteen (14) business days after receipt of TxDOT's comments. The Owner's failure to timely respond to any modified Plans submitted by the Developer pursuant to this paragraph shall be deemed the Owner's approval of same. If the Owner fails to timely prepare modified Plans which are its responsibility hereunder, then the Developer shall have the right to modify the Plans for the Owner's approval as if the Developer had originally prepared the Plans. The Developer shall be responsible for providing Plans to and obtaining comments on and approval of the Plans from the Developer. The process set forth in this paragraph will be repeated until the Owner, the Developer and TxDOT have all approved this Agreement and the Plans. (b) The parties hereto acknowledge and agree that TxDOT's review, comments, and /or approval of a Utility Assembly or any component thereof shall constitute TxDOT's approval of the location and manner in which a Utility Assembly will be installed, adjusted, or relocated within the state highway right of way, subject to the Developer's and Owner's satisfactory performance of the Adjustment work in accordance with the approved Plans. TxDOT has no duty to review Owner facilities or components for their quality or adequacy to provide the intended utility service. Design and Construction Standards. (a) All design and construction performed for the Adjustment work which is the subject of this Agreement shall comply with and conform to the following: (1) All applicable local and state laws, regulations, decrees, ordinances and policies, including the UAR, the Utility Manual issued by TxDOT (to the extent its requirements are mandatory for Utility Adjustments necessitated by the Project, communicated to the Owner by the Developer or TxDOT), the requirements of the CDA, and the policies of TxDOT; (2) All Federal laws, regulations, decrees, ordinances and policies applicable to projects receiving Federal funding, financing and /or credit assistance, including without limitation 23 CFR 645 Subparts A and B; and the Buy America provisions of 23 U.S.0 § 313 and 23 CFR 635.410. Utility shall supply, upon request by the Developer or State, proof of compliance with the aforementioned laws, rules and regulations prior to the commencement of construction. (3) The terms of all governmental permits or other approvals, as well as any private approvals of third parties necessary for such work; and (4) The standard specifications, standards of practice, and construction methods (collectively, "standards ") which the Owner customarily applies to facilities Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 4 of 18 Rev. 06/13 comparable to the Owner Utilities that are constructed by the Owner or for the Owner by its contractors at the Owner's expense, which standards are current at the time this Agreement is signed by the Owner, and which the Owner has submitted to the Developer in writing. (5) Owner agrees that all service meters must be placed outside of the State ROW. (b) Such design and construction also shall be consistent and compatible with (1) the Developer's current design and construction of the Project, (ii) the "Ultimate Configuration" for the Project, and (iii) any other utilities being installed in the same vicinity. The Owner acknowledges receipt from the Developer of Project plans and Ultimate Configuration documents as necessary to comply with the foregoing. In case of any inconsistency among any of the standards referenced in this Agreement, the most stringent standard shall apply. (c) The plans, specifications, and cost estimates contained in Exhibit A shall identify and detail all utility facilities that the Owner intends to abandon in place rather than remove, including material type, quantity, size, age, and condition. No facilities containing hazardous or contaminated materials may be abandoned, but shall be specifically identified and removed in accordance with the requirements of subparagraph (a). It is understood and agreed that the Developer shall not pay for the assessment and remediation or other corrective action relating to soil and ground water contamination caused by the utility facility prior to the removal. 4. Construction by the Owner; Scheduling. (a) The Owner hereby agrees to perform the construction necessary to adjust the Owner Utilities. All construction work hereunder shall be performed in a good and workmanlike manner, and in accordance with the Plans (except as modified pursuant to Paragraph 17). The Owner agrees that during the Adjustment of the Owner Utilities, the Owner and its contractors will coordinate their work with the Developer so as not to interfere with the performance of work on the Project by the Developer or by any other party. "Interfere" means any action or inaction that interrupts, interferes, delays or damages Project work. (b) The Owner may utilize its own employees or may retain such contractor or contractors as are necessary to adjust the Owner Utilities, through the procedures set forth in Form TxDOT -U -48 "Statement Covering Contract Work" attached hereto as Exhibit C. If the Owner utilizes its own employees for the Construction work portion of the Adjustment of Owner Utilities, a Form TxDOT -U -48 is not required. If the Adjustment of the Owner Utilities is undertaken by the Owner's contractor under a competitive bidding process, all bidding and contracting shall be conducted in accordance with all federal and state laws and regulations applicable to the Owner and the Project. (c) The Owner shall obtain performed by the Owner process as needed. Th e Developer as required fo r rights of way. Project Utility Adjustment Agrnt Owner Managed all permits necessary for the construction to be hereunder, and the Developer shall cooperate in that Owner shall submit a traffic control plan to the Adjustment work to be performed on existing road EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 5 of 18 Rev. 06/13 (d) The Owner shall commence its construction for Adjustment of each Owner Utility hereunder promptly after (1) receiving written notice to proceed therewith from the Developer, and (ii) any Project right of way necessary for such Adjustment has been acquired either by Developer (for adjusted facilities to be located within the Project right of way) or by the Owner (for adjusted facilities to be located outside of the Project right of way), or a right -of -entry permitting Owner's construction has been obtained from the landowner by the Developer or by the Owner with the Developer's prior approval. The Owner shall notify the Developer at least 72 hours prior to commencing construction for the Adjustment of each Owner Utility hereunder. (e) The Owner shall expeditiously stake the survey of the proposed locations of the Owner Utilities being adjusted, on the basis of the final approved Plans. The Developer shall verify that the Owner's Utilities, whether moving to a new location or remaining in place, clear the planned construction of the Project as staked in the field as well as the Ultimate Configuration. (f) The Owner shall complete all of the Utility reconstruction and relocation work, including final testing and acceptance thereof [check one box that applies]: ❑ on or before , 20 ❑ a duration not to exceed calendar days upon notice to proceed by the Developer. (g) The amount of reimbursement due to the Owner pursuant to this Agreement for the affected Adjustment(s) shall be reduced by ten percent (10 %) for each 30 -day period (and by a pro rata amount of said ten percent (10 %) for any portion of a 30 -day period) by which the final completion and acceptance date for the affected Adjustment(s) exceeds the applicable deadline. The provisions of this Paragraph 4(g) shall not limit any other remedy available to the Developer at law or in equity as a result of the Owner's failure to meet any deadline hereunder. The above reduction applies except to the extent due to (1) Force Majeure as described in Paragraph 24(c), (ii) any act or omission of the Developer, if the Owner fails to meet any deadline established pursuant to Paragraph 4(f), or (iii) if the Developer and /or TxDOT determine, in their sole discretion, that a delay in the relocation work is the result of circumstances beyond the control of the Owner or Owner's contractor and the Developer will not reduce the reimbursement. Costs of the Work. (a) The Owner's costs for Adjustment of each Owner Utility shall be derived from (1) the accumulated total of costs incurred by the Owner for design and construction of such Adjustment, plus (ii) the Owner's other related costs to the extent permitted pursuant to Paragraph 5(c) (including without limitation the eligible engineering costs incurred by the Owner for design prior to execution of this Agreement), plus (iii) the Owner's right of way acquisition costs, if any, which are reimbursable pursuant to Paragraph 16. (b) The Owner's costs associated with Adjustment of the Owner Utilities shall be developed pursuant to the method checked and described below [check only one box]: Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 6 of 18 Rev. 06/13 ❑ (1) Actual costs accumulated in accordance with a work order accounting procedure prescribed by the applicable Federal or State regulatory body ( "Actual Cost "); or ❑ (2) Actual costs accumulated in accordance with an established accounting procedure developed by the Owner and which the Owner uses in its regular operations ( "Actual Cost "); or ❑ (3) The agreed sum of $ ( "Agreed Sum "), as supported by the analysis of estimated costs attached hereto as part of Exhibit A. 6. Responsibility for Costs of Adjustment Work. The Agreed Sum or Actual Cost, as applicable, of all work to be performed pursuant to this Agreement shall be allocated between the Developer and the Owner as identified in Exhibit A and in accordance with §203.092, Texas Transportation Code. An allocation percentage may be determined by application of an eligibility ratio, if appropriate, as detailed in Exhibit A; provided, however, that any portion of an Agreed Sum or Actual Cost attributable to Betterment shall be allocated 100% to the Owner in accordance with Paragraph 10. All costs charged to the Developer by the Owner shall be reasonable and shall be computed using rates and schedules not exceeding those applicable to similar work performed by or for the Owner at the Owner's expense. Payment of the costs allocated to the Developer pursuant to this Agreement (if any) shall be full compensation to the Owner for all costs incurred by the Owner in Adjusting the Owner Utilities (including without limitation costs of relinquishing and /or acquiring right of way). 7. Billing, Payment, Records and Audits: Actual Cost Method. The following provisions apply if the Owner's costs are developed under procedure (1) or (2) described in Paragraph 5(b): (a) After (1) completion of all Adjustment work to be performed pursuant to this Agreement, (ii) the Developer's final inspection of the Adjustment work by Owner hereunder (and resolution of any deficiencies found), and (iii) receipt of an invoice complying with the applicable requirements of Paragraph 9, the Developer shall pay to the Owner an amount equal to ninety percent (90 %) of the Developer's share of the Owner's costs as shown in such final invoice (less amounts previously paid, and applicable credits). After completion of the Developer's audit referenced in Paragraph 7(c) and the parties' mutual determination of any necessary adjustment to the final invoice resulting therefrom, the Developer shall make any final payment due so that total payments will equal the total amount of the Developer's share reflected on such final invoice (as adjusted, if applicable). (b) When requested by the Owner and properly invoiced in accordance with Paragraph 9, the Developer shall make intermediate payments to the Owner based upon the progress of the work completed at not more than monthly intervals, and such payments shall not exceed eighty percent (80 %) of the Developer's share of the Owner's eligible costs as shown in each such invoice (less applicable credits). Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. (c) The Owner shall maintain complete and accurate cost records for all work performed pursuant to this Agreement,. The Owner shall maintain such records for four (4) years after receipt of final payment hereunder. The Developer and their respective representatives shall be allowed to audit such records during the Owner's regular business hours. Unsupported charges will not be considered eligible for reimbursement. Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 7 of 18 Rev. 06/13 The parties shall mutually agree upon (and shall promptly implement by payment or refund, as applicable) any financial adjustment found necessary by the Developer's audit. TxDOT, the Federal Highway Administration, and their respective representatives also shall be allowed to audit such records upon reasonable notice to the Owner, during the Owner's regular business hours. Billing and Payment: Agreed Sum Method. If the Owner's costs are developed under procedure (3) described in Paragraph 5(b), then the Developer shall pay its share of the Agreed Sum to the Owner after (a) completion of all Adjustment work to be performed pursuant to this Agreement, (b) the Developer's final inspection of the Adjustment work by Owner hereunder (and resolution of any deficiencies found), and (c) receipt of an invoice complying with the applicable requirements of Paragraph 9. 9. Invoices. If the Owner's costs are developed under procedure (1) or (2) described in Paragraph 5(b), then Owner shall list each of the services performed, the amount of time spent and the date on which the service was performed. The original and three (3) copies of each invoice shall be submitted to the Developer at the address for notices stated in Paragraph 22, unless otherwise directed by the Developer pursuant to Paragraph 22, together with (1) such supporting information to substantiate all invoices as reasonably requested by the Developer, and (2) such waivers or releases of liens as the Developer may reasonably require. The Owner shall make commercially reasonable efforts to submit final invoices not later than one hundred twenty (120) days after completion of work. Final invoices shall include any necessary quitclaim deeds pursuant to Paragraph 16, and all applicable record drawings accurately representing the Adjustment as installed. The Owner hereby acknowledges and agrees that any right it may have for reimbursement of any of its costs not submitted to the Developer within eighteen months following completion of all Adjustment work to be performed by both parties pursuant to this Agreement shall be deemed to have been abandoned and waived. Invoices shall clearly delineate total costs, and those costs that are reimbursable pursuant to the terms of this Agreement. 10. Betterment. (a) For purposes of this Agreement, the term `Betterment" means any upgrading of an Owner Utility being adjusted that is not attributable to the construction of the Project and is made solely for the benefit of and at the election of the Owner, including but not limited to an increase in the capacity, capability, efficiency or function of the adjusted Utility over that provided by the existing Utility facility or an expansion of the existing Utility facility; provided, however, that the following are not considered Betterments: (1) any upgrading which is required for accommodation of the Project; (ii) replacement devices or materials that are of equivalent standards although not identical; (iii) replacement of devices or materials no longer regularly manufactured with the next highest grade or size; (iv) any upgrading required by applicable laws, regulations or ordinances; (v) replacement devices or materials which are used for reasons of economy (e.g., non - stocked items may be uneconomical to purchase); or Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 8 of 18 Rev. 06/13 (vi) any upgrading required by the Owner's written "standards" meeting the requirements of Paragraph 3(a)(4). [Include the following for fiber optic Owner Utilities only.-] Extension of an Adjustment to the nearest splice boxes shall not be considered a Betterment if required by the Owner in order to maintain its written telephony standards. Any upgrading required by the Owner's written "standards" meeting the requirements of Paragraph 3(a)(4) shall be deemed to be of direct benefit to the Project. (b) It is understood and agreed that the Developer will not pay for any Betterments and that the Owner shall not be entitled to payment therefor. No Betterment may be performed in connection with the Adjustment of the Owner Utilities which is incompatible with the Project or the Ultimate Configuration or which cannot be performed within the other constraints of applicable law, any applicable governmental approvals, including without limitation the scheduling requirements thereunder. Accordingly, the parties agree as follows [check the one box that applies, and complete if appropriate]: ❑ (1) The Adjustment of the Owner Utilities pursuant to the Plans does not include any Betterment. ❑ The Adjustment of the Owner Utilities pursuant to the Plans includes Betterment to the Owner Utilities by reason of [insert explanation, e.g. "replacing 12" pipe with 24 "pipe]: . The Owner has provided to the Developer comparative estimates for (1) all costs for work to be performed by the Owner pursuant to this Agreement, including work attributable to the Betterment, and (ii) the cost to perform such work without the Betterment, which estimates are hereby approved by the Developer. The estimated amount of the Owner's costs for work hereunder which is attributable to Betterment is $ , calculated by subtracting (ii) from (1). The percentage of the total cost of the Owner's work hereunder which is attributable to Betterment is %, calculated by subtracting (ii) from (1), which remainder shall be divided by (1). (c) If Paragraph 10(b) identifies Betterment, then the following shall apply: (1) If the Owner's costs are developed under procedure (3) described in Paragraph 5(b), then the Agreed Sum stated in that Paragraph includes any credits due to the Developer on account of the identified Betterment, and no further adjustment shall be made on account of same. (ii) If the Owner's costs are developed under procedure (1) or (2) described in Paragraph 5(b), the parties agree as follows [If Paragraph 10(b) identifies Betterment and the Owner's costs are developed under procedure (1) or (2), check the one appropriate provision]: ❑ The estimated cost stated in Paragraph 10(b) is the agreed and final amount due for Betterment hereunder. Accordingly, each intermediate invoice submitted pursuant to Paragraph 7(b) shall include a credit for an appropriate percentage of the agreed Betterment amount, proportionate to the percentage of completion reflected in such invoice. The final invoice submitted pursuant to Paragraph 7(a) shall reflect the full amount of the agreed Betterment credit. For each invoice described in this paragraph, the credit for Betterment shall be applied before calculating the Developer's share (pursuant to Paragraph 6) of the cost of the Adjustment work. No other Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 9 of 18 Rev. 06/13 adjustment (either up or down) shall be made based on actual Betterment costs. ❑ The Owner is responsible for the actual cost of the identified Betterment, determined by multiplying (a) the Betterment percentage stated in Paragraph 10(b), by (b) the actual cost of all work performed by the Owner pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Owner to the Developer. Accordingly, each invoice submitted pursuant to either Paragraph 7(a) or Paragraph 7(b) shall credit the Developer with an amount calculated by multiplying (x) the Betterment percentage stated in Paragraph 10(b), by (y) the amount billed on such invoice. (d) The determinations and calculations of Betterment described in this Paragraph 10 shall exclude right of way acquisition costs. Betterment in connection with right -of -way acquisition is addressed in Paragraph 16. 11. Salvage. For any Adjustment from which the Owner recovers any materials and /or parts and retains or sells the same, after application of any applicable Betterment credit, the Developer is entitled to a credit for the salvage value of such materials and /or parts. If the Owner's costs are developed under procedure (1) or (2) described in Paragraph 5(b), then the final invoice submitted pursuant to Paragraph 7(a) shall credit the Developer with the full salvage value. If the Owner's costs are developed under procedure (3) described in Paragraph 5(b), then the Agreed Sum includes any credit due to the Developer on account of salvage. 12. Utility Investigations. At the Developer's request, the Owner shall assist the Developer in locating any Utilities (including appurtenances) which are owned and /or operated by Owner and may be impacted by the Project. Without limiting the generality of the foregoing, in order to help assure that neither the adjusted Owner Utilities nor existing, unadjusted utilities owned or operated by the Owner are damaged during construction of the Project, the Owner shall mark in the field the location of all such utilities horizontally on the ground in advance of Project construction in the immediate area of such utilities. 13. Inspection and Ownership of Owner Utilities. (a) The Developer shall have the right, at its own expense, to inspect the Adjustment work performed by the Owner or its contractors, during and upon completion of construction. All inspections of work shall be completed and any comment provided within five (5) business days after request for inspection is received. (b) The Owner shall accept full responsibility for all future repairs and maintenance of said Owner Utilities. In no event shall the Developer or TxDOT become responsible for making any repairs or maintenance, or for discharging the cost of same. The provisions of this Paragraph 13(b) shall not limit any rights which the Owner may have against the Developer if either party respectively damages any Owner Utility as a result of its respective Project activities. 14. Design Changes. The Developer will be responsible for additional Adjustment design and responsible for additional construction costs necessitated by design changes to the Project made after approval of the Plans, upon the terms specified herein. 15. Field Modifications. The Owner shall provide the Developer with documentation of any field modifications, including Utility Adjustment Field Modifications as well as minor changes as described in Paragraph 17(b), occurring in the Adjustment of the Owner Utilities. Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 10 of 18 Rev. 06/13 16. Real Property Interests. (a) The Owner has provided, or upon execution of this Agreement shall promptly provide to the Developer, documentation acceptable to TxDOT indicating any right, title or interest in real property claimed by the Owner with respect to the Owner Utilities in their existing location(s). Such claims are subject to TxDOT's approval as part of its review of the Developer's Utility Assembly as described in Paragraph 2. Claims approved by TxDOT as to rights or interests are referred to herein as "Existing Interests ". (b) If acquisition of any new easement or other interest in real property ( "New Interest ") is necessary for the Adjustment of any Owner Utilities, then the Owner shall be responsible for undertaking such acquisition. The Owner shall implement each acquisition hereunder expeditiously so that related Adjustment construction can proceed in accordance with the Developer's Project schedules. The Developer shall be responsible for its share (if any, as specified in Paragraph 6) of the actual and reasonable acquisition costs of any such New Interest (including without limitation the Owner's reasonable overhead charges and reasonable legal costs as well as compensation paid to the landowner), excluding any costs attributable to Betterment as described in Paragraph 16(c), and subject to the provisions of Paragraph 16(e); provided, however, that all acquisition costs shall be subject to the Developer's prior written approval. Eligible acquisition costs shall be segregated from other costs on the Owner's estimates and invoices. Any such New Interest shall have a written valuation and shall be acquired in accordance with applicable law. (c) The Developer shall pay its share only for a replacement in kind of an Existing Interest (e.g., in width and type), unless a New Interest exceeding such standard (1) is required in order to accommodate the Project or by compliance with applicable law, or (ii) is called for by the Developer in the interest of overall Project economy. Any New Interest which is not the Developer's cost responsibility pursuant to the preceding sentence shall be considered a Betterment to the extent that it upgrades the Existing Interest which it replaces, or in its entirety if the related Owner Utility was not installed pursuant to an Existing Interest. Betterment costs shall be solely the Owner's responsibility. (d) For each Existing Interest located within the final Project right of way, upon completion of the related Adjustment work and its acceptance by the Owner, the Owner agrees to execute a quitclaim deed or other appropriate documentation relinquishing such Existing Interest to TxDOT, unless the affected Owner Utility is remaining in its original location or is being reinstalled in a new location within the area subject to such Existing Interest. All quitclaim deeds or other relinquishment documents shall be subject to TxDOT's approval as part of its review of the Utility Assembly as described in Paragraph 2. For each such Existing Interest relinquished by the Owner, the Developer shall do one of the following to compensate the Owner for such Existing Interest, as appropriate: (1) If the Owner acquires a New Interest for the affected Owner Utility, the Developer shall reimburse the Owner for the Developer's share of the Owner's actual and reasonable acquisition costs in accordance with Paragraph 16(b) and subject to Paragraph 16(c); or (ii) If the Owner does not acquire a New Interest for the affected Owner Utility, the Developer shall compensate the Owner for the Developer's share of the fair market value of such relinquished Existing Interest, as mutually agreed between the Owner and the Developer and supported by a written valuation. Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 11 of 18 Rev. 06/13 The compensation, if any, provided to the Owner pursuant to either subparagraph (i) or subparagraph (ii) above shall constitute complete compensation to the Owner for the relinquished Existing Interest and any New Interest, and no further compensation shall be due to the Owner from the Developer or TxDOT on account of such Existing Interest or New Interest(s). (e) The Owner shall execute a Utility Joint Use Acknowledgment (TxDOT- U -80A) for each Adjustment where required pursuant to TxDOT policies. All Utility Joint Use Acknowledgments shall be subject to TxDOT approval as part of its review of the Utility Assembly as described in Paragraph 2. 17. Amendments and Modifications. This Agreement may be amended or modified only by a written instrument executed by the parties hereto, in accordance with Paragraph 17(a) or Paragraph 17(b) below. (a) Except as otherwise provided in Paragraph 17(b), any amendment or modification to this Agreement or the Plans attached hereto shall be implemented by a Utility Adjustment Agreement Amendment ( "UAAA ") in the form of Exhibit B hereto (TxDOT- CDA -U- 35A-OM). The UAAA form can be used for a new scope of work with concurrence of the Developer and TxDOT as long as the Design and Construction responsibilities have not changed. Each UAAA is subject to the review and approval of TxDOT, prior to its becoming effective for any purpose and prior to any work being initiated thereunder. The Owner agrees to keep and track costs for each UAAA separately from other work being performed. (b) For purposes of this Paragraph 17(b), "Utility Adjustment Field Modification" shall mean any horizontal or vertical design change from the Plans included in a Utility Assembly previously approved by TxDOT, due either to design of the Project or to conditions not accurately reflected in the approved Utility Assembly (e.g., shifting the alignment of an 8 in. water line to miss a modified or new roadway drainage structure). A Utility Adjustment Field Modification agreed upon by the Developer and the Owner does not require a UAAA, provided that the modified Plans have been submitted to TxDOT for its review and comment. A minor change (e.g., an additional water valve, an added Utility marker at a ROW line, a change in vertical bend, etc.) will not be considered a Utility Adjustment Field Modification and will not require a UAAA, but shall be shown in the documentation required pursuant to Paragraph 15. 18. Entire Agreement. This Agreement embodies the entire agreement between the parties and there are no oral or written agreements between the parties or any representations made which are not expressly set forth herein. 19. Assignment; Binding Effect; TxDOT as Third Party Beneficiary. The Owner and the Developer may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other parties and of TxDOT, which consent may not be unreasonably withheld or delayed; provided, however, that the Developer may assign any of its rights and /or delegate any of its duties to TxDOT or to any other entity with which TxDOT contracts to fulfill the Developer's obligations at any time without the prior consent of the Owner. This Agreement shall bind the Owner, the Developer and their successors and permitted assigns, and nothing in this Agreement nor in any approval subsequently provided by any party hereto shall be construed as giving any benefits, rights, remedies, or claims to any other person, firm, corporation or other entity, including, without limitation, any contractor or other party retained Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 12 of 18 Rev. 06/13 for the Adjustment work or the public in general; provided, however, that the Owner and the Developer agree that although TxDOT is not a party to this Agreement, TxDOT is intended to be a third -parry beneficiary to this Agreement. 20. Breach by the Parties. (a) If the Owner claims that the Developer has breached any of its obligations under this Agreement, the Owner will notify the Developer and TxDOT in writing of such breach, and the Developer shall have 30 days following receipt of such notice in which to cure such breach, before the Owner may invoke any remedies which may be available to it as a result of such breach; provided, however, that both during and after such period TxDOT shall have the right, but not the obligation, to cure any breach by the Developer. Without limiting the generality of the foregoing, (a) TxDOT shall have no liability to the Owner for any act or omission committed by the Developer in connection with this Agreement, and (b) in no event shall TxDOT be responsible for any repairs or maintenance to the Owner Utilities adjusted pursuant to this Agreement. (b) If the Developer claims that the Owner has breached any of its obligations under this Agreement, the Developer will notify the Owner and TxDOT in writing of such breach, and the Owner shall have 30 days following receipt of such notice in which to cure such breach, before the Developer or the Developer may invoke any remedies which may be available to it as a result of such breach. 21. Traffic Control. The Developer shall provide traffic control or shall reimburse the Owner for the Developer's share (if any, as specified in Paragraph 6) of the costs for traffic control made necessary by the Adjustment work performed by either the Developer or the Owner pursuant to this Agreement, in compliance with the requirements of the Texas Manual on Uniform Traffic Control Devices. Betterment percentages calculated in Paragraph 10 shall also apply to the traffic control costs. 22. Notices. Except as otherwise expressly provided in this Agreement, all notices or communications pursuant to this Agreement shall be sent or delivered to the following: The Owner: The Developer: Phone: Fax: Phone: Fax: A party sending a notice of default of this Agreement to another party shall also send a copy of such notice to TxDOT and to the CDA Utility Manager at the following addresses: TxDOT: TxDOT Department of Transportation Attention: Donald C. Toner, Jr., SR/WA 125 E. 11`h Street Austin, Texas 78701 -2483 Phone: (512) 936 -0980 Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 13 of 18 Rev. 06/13 CDA Utility Manager Any notice or demand required herein shall be given (a) personally, (b) by certified or registered mail, postage prepaid, return receipt requested, or (c) by reliable messenger or overnight courier to the appropriate address set forth above. Any notice served personally shall be deemed delivered upon receipt and served by certified or registered mail or by reliable messenger or overnight courier shall be deemed delivered on the date of receipt as shown on the addressee's registry or certification of receipt or on the date receipt is refused as shown on the records or manifest of the U.S. Postal Service or such courier. Any parry may from time to time designate any other address for this purpose by written notice to all other parties; TxDOT may designate another address by written notice to all parties. 23. Approvals. Any acceptance, approval, or any other like action (collectively "Approval ") required or permitted to be given by either the Developer or the Owner pursuant to this Agreement: (a) Must be in writing to be effective (except if deemed granted pursuant hereto), (b) Shall not be unreasonably withheld or delayed; and if Approval is withheld, such withholding shall be in writing and shall state with specificity the reason for withholding such Approval, and every effort shall be made to identify with as much detail as possible what changes are required for Approval, and (c) Except for approvals by TxDOT, and except as may be specifically provided otherwise in this Agreement, shall be deemed granted if no response is provided to the party requesting an Approval within the time period prescribed by this Agreement (or if no time period is prescribed, then fourteen (14) calendar days), commencing upon actual receipt by the party from which an Approval is requested or required, of a request for Approval from the requesting party. All requests for Approval shall be sent out by the requesting party to the other party in accordance with Paragraph 22. 24. Time; Force Maieure. (a) Time is of the essence in the performance of this Agreement. (b) All references to "days" herein shall be construed to refer to calendar days, unless otherwise stated. (c) No party shall be liable to another party for any delay in performance under this Agreement from any cause beyond its control and without its fault or negligence ( "Force Majeure"), such as acts of God, acts of civil or military authority, fire, earthquake, strike, unusually severe weather, floods or power blackouts. If any such event of Force Majeure occurs, the Owner agrees, if requested by the Developer, to accelerate its efforts hereunder if reasonably feasible in order to regain lost time, so long as the Developer agrees to reimburse the Owner for the reasonable and actual costs of such efforts. 25. Continuing Performance. In the event of a dispute, the Owner and the Developer agree to continue their respective performance hereunder to the extent feasible in light of the dispute, including paying billings, and such continuation of efforts and payment of billings shall not be construed as a waiver of any legal right. 26. Equitable Relief. The Developer and the Owner acknowledge and agree that delays in Adjustment of the Owner Utilities will impact the public convenience, safety and welfare, and that (without limiting the parties' remedies hereunder) monetary damages would be inadequate to Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 14 of 18 Rev. 06/13 compensate for delays in the construction of the Project. Consequently, the parties hereto (and TxDOT as well, as a third party beneficiary) shall be entitled to specific performance or other equitable relief in the event of any breach of this Agreement which threatens to delay construction of the Project; provided, however, that the fact that specific performance or other equitable relief may be granted shall not prejudice any claims for payment or otherwise related to performance of the Adjustment work hereunder. 27. Authority. The Owner and the Developer each represent and warrant to the other party that the warranting party possesses the legal authority to enter into this Agreement and that it has taken all actions necessary to exercise that authority and to lawfully authorize its undersigned signatory to execute this Agreement and to bind such party to its terms. Each person executing this Agreement on behalf of a party warrants that he or she is duly authorized to enter into this Agreement on behalf of such party and to bind it to the terms hereof. 28. Cooperation. The parties acknowledge that the timely completion of the Project will be influenced by the ability of the Owner (and its contractors) and the Developer to coordinate their activities, communicate with each other, and respond promptly to reasonable requests. Subject to the terms and conditions of this Agreement, the Owner and the Developer agree to take all steps reasonably required to coordinate their respective duties hereunder in a manner consistent with the Developer's current and future construction schedules for the Project. The Owner further agrees to require its contractors to coordinate their respective work hereunder with the Developer. 29. Termination. If the Project is canceled or modified so as to eliminate the necessity of the Adjustment work described herein, then the Developer shall notify the Owner in writing and the Developer reserves the right to thereupon terminate this Agreement. Upon such termination, the parties shall negotiate in good faith an amendment that shall provide mutually acceptable terms and conditions for handling the respective rights and liabilities of the parties relating to such termination. 30. Nondiscrimination. Each party hereto agrees, with respect to the work performed by such party pursuant to this Agreement, that such party shall not discriminate on the grounds of race, color, sex, national origin or disability in the selection and /or retention of contractors and consultants, including procurement of materials and leases of equipment. 31. Applicable Law, Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Texas, without regard to the conflict of laws principles thereof. Venue for any action brought to enforce this Agreement or relating to the relationship between any of the parties shall be the District Court of Travis County, Texas or the United States District Court for the Western District of Texas (Austin). 32. Waiver of Consequential Damages. No party hereto shall be liable to any other party to this Agreement, whether in contract, tort, equity, or otherwise (including negligence, warranty, indemnity, strict liability, or otherwise), for any punitive, exemplary, special, indirect, incidental, or consequential damages, including, without limitation, loss of profits or revenues, loss of use, claims of customers, or loss of business opportunity. 33. Captions. The captions and headings of the various paragraphs of this Agreement are for convenience and identification only, and shall not be deemed to limit or define the content of their respective paragraphs. Project Utility Adjustment Agrnt Owner Managed EXHIBIT B Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 15 of 18 Rev. 06/13 34. Counterparts. This Agreement may be executed in any number of counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute one and the same instrument. 35. Effective Date. This Agreement shall become effective upon the later of (a) the date of signing by the last party (either the Owner or the Developer) signing this Agreement, and (b) the date of TxDOT's approval as indicated by the signature of TxDOT's representative, below. APPROVED BY: OWNER TEXAS DEPARTMENT OF TRANSPORTATION CITY OF DENTON, TEXAS A Texas Municipal Corporation I Authorized Signature Printed Name: Donald C. Toner, Jr., SR/WA Date: Project Utility Adjustment Agrnt Owner Managed By: Duly Authorized Representative Printed Name: George C. Campbell Title: City Manager Date: DEVELOPER By: Duly Authorized Representative Printed Name: Title: Date: Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 16 of 18 Rev. 06/13 EXHIBIT B EXHIBIT A County: ROW CSJ No.: Const. CSJ No.: Highway: Limits: Fed. Pro). No.: PLANS, SPECIFICATIONS, COST ESTIMATES AND ALLOCATION Project Utility Adjustment Agrnt Owner Managed Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 17 of 18 Rev. 06/13 EXHIBIT B EXHIBIT B County: ROW CSJ No.: Const. CSJ No.: Highway: Limits: Fed. Pro). No.: UTILITY ADJUSTMENT AGREEMENT AMENDMENT (TxDOT- CDA- U- 35A -OM) Project Utility Adjustment Agrnt Owner Managed Texas Department of Transportation Form TXD0T- CDA- U- 35 -0M -IH 35E Page 18 of 18 Rev. 06/13 EXHIBIT B EXHIBIT C County: ROW CSJ No.: Const. CSJ No.: Highway: Limits: Fed. Pro). No.: STATEMENT COVERING CONTRACT WORK (TxDOT -U -48) Project Utility Adjustment Agrnt Owner Managed Exhibit C Texas Department of Transportation Form TxDOT- CDA- U- 35A -OM -IH 35E Page 1 of 5 Rev. 04/05/12 County: Highway: Limits: Fed. Proj. No.: ROW CSJ No.: Const. No.: UTILITY ADJUSTMENT AGREEMENT AMENDMENT (Owner Managed) (Amendment No. to Agreement No.: -U- THIS AMENDMENT TO PROJECT UTILITY ADJUSTMENT AGREEMENT (this "Amendment "), by and between, hereinafter identified as the "Developer ", and the City of Denton, Texas , hereinafter identified as the "Owner ", is as follows: WITNESSETH WHEREAS, the STATE of TEXAS, acting by and through the Texas Department of Transportation, hereinafter identified as "TxDOT ", proposes to construct the toll project identified above (the "Project" as more particularly described in the "Original Agreement ", defined below); and WHEREAS, pursuant to that certain Comprehensive Development Agreement ( "CDA ") by and between TxDOT and the Developer with respect to the Project, the Developer has undertaken the obligation to design, construct, and potentially maintain the Project, including causing the removal, relocation, or other necessary adjustment of existing utilities impacted by the Project (collectively, "Adjustment "); and WHEREAS, the Owner and Developer are parties to that certain executed Project Utility Adjustment Agreement designated by the "Agreement No." indicated above, as amended by previous amendments, if any (the "Original Agreement "), which provides for the adjustment of certain utilities owned and /or operated by the Owner (the "Utilities "); and WHEREAS, the parties are required to utilize this Amendment form in order to modify the Original Agreement to add the adjustment of Owner utilities facilities not covered by the Original Agreement; and WHEREAS, the parties desire to amend the Original Agreement to add additional Owner utility facility(ies), on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the agreements contained herein, the parties hereto agree as follows: Amendment. The Original Agreement is hereby amended as follows: (a) The description of the Owner Utilities and the proposed Adjustment of the Owner Utilities in the Original Agreement is hereby amended to add the following facility(ies) ( "Additional Owner Utilities ") and proposed Adjustment(s) [insert below a description of the affected facilities (by type, size and location) as well as a brief description of the nature of the Adjustment work to be performed (e.g., "adjust 12 " waterline from approximately Highway Station 100 +00 to approximately Highway Station 200 +00')J: TxDOl DMfl 8lectric Facilities - Amendment 6-1 -111 358, 1JA,A,A (()wrier Mina�ed 2 - inc.cicrc Exhibit C Texas Department of Transportation Form TxDOT- CDA- U- 35A -OM -IH 35E Page 2 of 5 Rev. 04/05/12 (b) The Plans, as defined in Paragraph 1 of the Original Agreement, are hereby amended to add thereto the plans, specifications and cost estimates attached hereto as Exhibit A. (c) The Plans attached hereto as Exhibit A, along with this Amendment, shall be submitted upon execution to TxDOT in accordance with Paragraph 2 of the Original Agreement, and Paragraph 2 shall apply to this Amendment and the Plans attached hereto in the same manner as if this Amendment were the Original Agreement. If the Owner claims an Existing Interest for any of the Additional Owner Utilities, documentation with respect to such claim shall be submitted to TxDOT as part of this Amendment and the attached Plans, in accordance with Paragraph 16(a) of the Original Agreement. (d) Paragraph 4(f) of the Original Agreement is hereby amended to add the following deadline for the Adjustment of the Additional Owner Utilities [check one box that applies]: ❑ Owner shall complete all of the utility reconstruction and relocation work, including final testing and acceptance thereof, on or before , 20 ❑ Owner shall complete all of the utility reconstruction and relocation work, including final testing and acceptance thereof, within calendar days after delivery to Owner of a notice to proceed by Developer. (e) For purposes of Paragraph 5(b) of the Original Agreement, the Owner's costs associated with Adjustment of the Additional Owner Utilities shall be developed pursuant to the method checked and described below, [check only one box]: ❑ (1) Actual costs accumulated in accordance with a work order accounting procedure prescribed by the applicable Federal or State regulatory body ( "Actual Cost "); or ❑ (2) Actual costs accumulated in accordance with an established accounting procedure developed by the Owner and which the Owner uses in its regular operations ( "Actual Cost "); or ❑ (3) The agreed sum of $ ( "Agreed Sum "), as supported by the analysis of estimated costs attached hereto as part of Exhibit A (f) For purposes of Paragraph 6 of the Original Agreement, responsibility for the Agreed Sum or Actual Cost, as applicable, of all Adjustment work to be performed pursuant to this Amendment shall be allocated between the Developer and the Owner as identified in Exhibit A and in accordance with §203.092 of the Texas Transportation Code. An allocation percentage may be determined by application of an Eligibility Ratio, if appropriate, as detailed in Exhibit A; provided, however, that any portion of an Agreed Sum or Actual Cost attributable to Betterment shall be allocated 100% to the Owner in accordance with Paragraph 10 of the Original Agreement. (g) Paragraph 10(b) of the Original Agreement is hereby amended to add the following [Check the one box that applies]: ❑ The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, does not include any Betterment. TxDOT -DME- lectricFacilities- Amendment6- 1- 111358,LJ AAA (()wrierMana�ecl�(2,)- inc.icrc I� ���r_r�nn� �.,�z Exhibit C Texas Department of Transportation Form TxDOT- CDA- U- 35A -OM -IH 35E Page 3 of 5 Rev. 04/05/12 ❑ The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, includes Betterment to the Additional Owner Utilities by reason of [insert explanation, e.g. "replacing 12 "pipe with 24 "pipe]: . The Owner has provided to the Developer comparative estimates for (i) all costs for work to be performed by the Owner pursuant to this Amendment, including work attributable to the Betterment, and (ii) the cost to perform such work without the Betterment, which estimates are hereby approved by the Developer. The estimated amount of the Owner's costs for work under this Agreement which is attributable to Betterment is $ , calculated by subtracting (ii) from (1). The percentage of the total cost of the Owner's work hereunder which is attributable to Betterment is %, calculated by subtracting (ii) from (1) which remainder shall be divided by (1). (h) The following shall apply to any Betterment described in Paragraph 1(g) of this Amendment: (1) If the Owner's costs are developed under procedure (3) described in Paragraph 1(e) of this Amendment, then the agreed sum stated in that Paragraph includes any credits due to the Developer on account of the identified Betterment, and no further adjustment shall be made on account of same. (ii) If the Owner's costs are developed under procedure (1) or (2) described in Paragraph 1(e) of this Amendment, the parties agree as follows [check the one appropriate provision]: ❑ The estimated cost stated in Paragraph 1(g) of this Amendment is the agreed and final amount due for Betterment under this Amendment. Accordingly, each intermediate invoice submitted for Adjustment(s) of the Additional Owner Utilities pursuant to Paragraph 7(b) of the Original Agreement shall credit the Developer with an appropriate amount of the agreed Betterment amount, proportionate to the percentage of completion reflected in such invoice. The final invoice submitted for Adjustment(s) of the Additional Owner Utilities pursuant to Paragraph 7(a) of the Original Agreement shall reflect the full amount of the agreed Betterment credit. For each invoice described in this paragraph, the credit for Betterment shall be applied before calculating the Developer's share (pursuant to Paragraph 1(e) of this Amendment) of the cost of the Adjustment work. No other adjustment (either up or down) shall be made based on actual Betterment costs. ❑ The Owner is responsible for the actual cost of the identified Betterment, determined by multiplying (a) the Betterment percentage stated in Paragraph 1(g) of this Amendment, by (b) the actual cost of all work performed by the Owner pursuant to this Amendment (including work attributable to the Betterment), as invoiced by the Owner to the Developer. Accordingly, each invoice submitted for Adjustment of the Additional Owner Utilities pursuant to either Paragraph 7(a) or Paragraph 7(b) of the Original Agreement shall credit the Developer with an amount calculated by multiplying (x) the Betterment percentage stated in Paragraph 1(g) of this Amendment, by (y) the amount billed on such invoice. (1) The determinations and calculations of Betterment described in this Amendment shall exclude right -of -way acquisition costs. Betterment in connection with right -of -way acquisition is addressed in Paragraph 16 of the Original Agreement. TxDOT -DME- lectric Facilities - Amendment 6 -1- 11135E UAAA ( wrier Managed 2) -inc. Exhibit C Texas Department of Transportation Form TxDOT- CDA- U- 35A -OM -IH 35E Page 4 of 5 Rev. 04/05/12 (j) Owner and the Developer agree to refer to this Amendment, designated by the "Amendment No." and "Agreement number" indicated on page I above, on all future correspondence regarding the Adjustment work that is the subject of this Amendment and to track separately all costs relating to this Amendment and the Adjustment work described herein. (k) [Include any other proposed amendments in compliance with the applicable law.] 2. General. (a) All capitalized terms used in this Amendment shall have the meanings assigned to them in the Original Agreement, except as otherwise stated herein. (b) This Amendment may be executed in any number of counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute one and the same instrument. (c) Except as amended hereby, the Original Agreement shall remain in full force and effect. In no event shall the responsibility, as between the Owner and the Developer, for the preparation of the Plans and the Adjustment of the Owner Utilities be deemed to be amended hereby. (d) This Amendment shall become effective upon the later of (a) the date of signing by the last party (either the Owner or the Developer) signing this Amendment, and (b) the completion of TxDOT's review and approval as indicated by the signature of TxDOT's representative, below. TxDOT -DME- lectric Facilities - Amendment 6 -1- 11135E UAAA ( wrier Managed 2) -inc. Texas Department of Transportation Form TxDOT- CDA- U- 35A -OM -IH 35E Page 5 of 5 Rev. 04/05/12 APPROVED BY: TEXAS DEPARTMENT OF TRANSPORTATION Authorized Signature Printed Name: Date: Exhibit C OWNER CITY OF DENTON, TEXAS A Texas Municipal Corporation [Print Owner Name] By: Duly Authorized Representative Printed Name: George C. Campbell Title: City Manager Date: DEVELOPER By: Duly Authorized Representative Printed Name: Title: Date: TxDOT -DME- lectric Facilities - Amendment 6 -1- 11135E UAAA ( wner Managcd 2) -inc. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ADP14 -0009, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding an Alternative Environmentally Sensitive Area Plan to allow for residential development within an existing Environmentally Sensitive Area (ESA). The approximately 12.68 -acre ESA is located within a proposed 98- acre single - family residential development (Beaver Creek), on the northwest corner of North Loop 288 and Stuart Road within a Neighborhood Residential 4 (NR -4) zoning district; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, a severability clause, and an effective date. (ADP 14- 0009). The Planning and Zoning Commission recommends approval (7 -0). BACKGROUND The applicant, Chris Blevins with Pape- Dawson Engineers, is requesting an Alternative Environmentally Sensitive Area Plan to develop the subject property with single - family residential homes (Beaver Creek). The undeveloped 98 -acre site is located north of North Loop 288 and contains riparian buffers and water - related habitats throughout. Per the Denton Development Code (DDC) riparian buffers are areas "identified as 100 feet from the stream centerline for streams draining a basin of greater than one square mile." Water- related habitats are defined by the DDC as areas "designated for wetland, tree, and understory preservation and include significant stands of predominately native water - related habitat." If the development proceeds as proposed, 1.152 acres of the 12.68 -acre Environmentally Sensitive Area (ESA) will be disturbed by future roadways and residential lots. The Denton Development Code (DDC) does not permit land - disturbing activities or structures within ESAs. However, Section 35.17.12 (Environmentally Sensitive Areas) allows for Alternative Environmentally Sensitive Area Plans to allow for land - disturbing activities or structures within ESAs if it will result in a "high quality development that meets the intent of the standards of the Denton Development Code." In order to achieve the high quality development required by the DDC, the applicant has proposed mitigation measures to incorporate the existing water habitat features into the design of the residential development. These include: expanding protected ESA along the stream bank, cleaning up trash and debris accumulated in low lying areas, re- vegetating ESA and adjacent areas with native plants, providing an earthen nature walking trail with interpretative signage along the stream channel, and utilizing bio- engineering controls for channel stabilization. The preserved ESA and associated amenities will be maintained by the homeowner's association. City of Denton Page 1 of 3 Printed on 2/12/2015 File M ADP14 -0009, Version: Staff analyzed the amount of ESA that will be disturbed and the proposed mitigation, and determined that the measures would result in a high - quality development, meeting the intent of the standards of the DDC (See Staff Analysis, Exhibit 1). Additionally, the proposal is consistent with the Denton Plan by organizing the residential development around an open, naturalized area with a recreation amenity. The applicant has submitted a detailed Project Narrative that explains both the preservation and mitigation efforts proposed; including photos for reference (see Exhibit 5). Also included in the consideration of this item is the proposed Alternative Environmentally Sensitive Area Plan (see Exhibit 8). On January 9, 2014, nine certified public notices were sent to property owners within 200 feet and 36 courtesy notices were sent to those within 500 feet of the site (Exhibit 10). As of this writing, staff has received one response to the Notice of Public Hearing in favor of the request. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table the item. RECOMMENDATION The Planning and Zoning Commission recommends approval of this request with conditions (7 -0). Staff recommends approval of ADP 14 -0009, with the following conditions: 1. Prior to platting approval, deed restrict the expanded ESA (approximately 4.99 acres) along the stream bank as identified in Exhibit 8. The deed restrictions must include a perpetual maintenance provision for any open space by the homeowner's association. 2. Remove all trash and debris accumulated in low lying areas of the site as needed. 3. Prior to the issuance of building permits for any structure, re- vegetate the ESA and adjacent areas with native plants. 4. Prior to the issuance of building permits for any structure, provide an earthen nature walking trail with interpretative signage along the stream channel as shown on Exhibit 8. 5. Prior to the issuance of building permits for any structure, utilize bio- engineering controls for channel stabilization, which may could include live stakings /plantings, coir logs and fiber rolls, revetments, fascines, riprap with vegetation, or gabions with vegetation. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On January 21, 2015, the Planning and Zoning Commission recommended approval of ADP 14 -0009 by a vote of 7 -0. FISCAL INFORMATION Not Applicable. City of Denton Page 2 of 3 Printed on 2/12/2015 File #: ADP14 -0009, Version: 1 EXHIBITS 1. Staff Analysis 2. Site Location/Aerial Map 3. Existing Zoning Map 4. Future Land Use Map 5. Project Narrative from Applicant 6. Existing Environmentally Sensitive Area Map 7. Revised Environmentally Sensitive Area Map 8. Alternative Environmentally Sensitive Area Plan 9. Site Photos 10. Notification Map and Responses 11. January 21, 2015, Planning and Zoning Meeting Minutes 12. Draft Ordinance Respectfully submitted: Brian Lockley, AICP, CPM Director, Planning and Development Prepared by: Julie Wyatt Assistant Planner City of Denton Page 3 of 3 Printed on 2/12/2015 Exhibit 1 Staff Analysis CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P &Z Date: January 21, 2015 TYPE: Alternative Development Plan CC Date: February 17, 2015 PROJECT #: ADP14 -0009 Project Number: ADP14 -0009 Request: Consider making a recommendation to City Council concerning an Alternative Environmentally Sensitive Area Plan to allow for residential development within an existing Environmentally Sensitive Area (ESA). Applicant: Chris Blevins Pape- Dawson Engineers 5700 West Plano Parkway, Ste 2500 Plano, Texas 75093 Property Owner: Location: Size: Zoning Designation: Future Land Use: Case Planner: Staff Recommendation: Summary of Analysis: Request American National Bank 1201 Cross Timbers Road Flower Mound, Texas 75028 The property is located north of North Loop 288 and west of Stuart Road. 98 acres + The subject property is located in a Neighborhood Residential 4 (NR -4) zoning district. The subject property has a Neighborhood Center future land use designation. Julie Wyatt Staff recommends approval of the Alternative Environmentally Sensitive Area Plan, with conditions. The applicant, Chris Blevins with Pape- Dawson Engineers, is requesting an Alternative Environmentally Sensitive Area Plan to address development within an Environmentally Sensitive Area (ESA) on a 98 -acre site. The intent is to construct approximately 392 single - family residential houses, disturbing approximately 1.152 acres of the 12.68 -acre ESA. To mitigate for the disruption, the applicant has proposed an expansion of the protected ESA and removal of debris that has accumulated in low lying areas. Additional re- vegetation of the ESA and adjacent area with native plants, an earthen nature walking trail with interpretative signage along the stream channel, and bio- engineering controls for channel stabilization are also proposed as mitigation. The Existing Environmentally Sensitive Areas (ESAs) Map shows a network of interconnected riparian buffers and water - related habitats throughout the subject property (Exhibit 6). The protected areas are 100 -foot wide swaths between existing water - related habitats along stream channels and ponds' wetted perimeter. Field assessments of the ESA (ESA14 -0004) ranked the quality of the protected areas between poor and fair. The outcomes of the field assessment were twofold: established the true boundaries of the ESA and determined the quality of the areas to be impacted. Due to mapping errors, the Existing ESA Map (Exhibit 6) shows more areas to be impacted than what would actually occur. Exhibit 7 shows the revised ESA area (in white) based upon the field assessments. The applicant's proposed residential development must meet all requirements for the Denton Development Code's (DDC's) Neighborhood Residential 4 (NR -4) zoning district, including site design, platting, and transportation. NR -4 permits single- family dwellings at a maximum density of four dwelling units per acre with 60 percent maximum lot coverage. Consistency with the Denton Development Code Section 35.17.8 of the DDC outlines the prohibited activities within ESA Riparian Buffer and Water- Related Habitats: 1. Land disturbing activity not authorized by a Corp Section 404 Permit of Letter of Permission and by the Director as part of the ESA review. 2. Uncontained and contained areas of hazardous materials handling areas for the receiving and storage of hazardous waste. 3. Any structures, including storage sheds, garages and carports, located within the area mapped as Riparian Buffer and Water Related Habitats. Land disturbing activity is defined in Subchapter 23 of the DDC as "Alteration of the land surface by: any grading, scraping, excavating, dredging, transporting or filling of land; any clearing of vegetation; any construction, rebuilding, or alteration of a building, road, driveway, parking area, or other structure, not including routine maintenance such as painting, repair, or reconstruction of existing structures or surfaces; and Any substantial activity or use which may result in soil erosion from water or wind and the movement of sediments into waters or lands protected by this Chapter." If developed as proposed, the request will affect a total of 1.152 acres of the existing ESA with 0.613 acres of ESA impacts due to road crossings and 0.539 acres due to lot impacts. The road crossings and lot impacts would disturb the land, and therefore not meet the requirements set forth in Section 35.17.8 of the DDC. An Alternative Environmentally Sensitive Area Plan allows some flexibility within ESAs and must be approved through the zoning amendment procedure. According to Section 35.17.12 (General Regulations) of the DDC, to approve an Alternative Environmentally Sensitive Area Plan to allow activities not typically permitted within an ESA, the proposal must result in a "high quality development that meets the intent of the standards in the Denton Development Code." Proposed Mitigation The applicant is proposing mitigation that aims to incorporate existing water habitat features into the overall design of the residential development and entails the following: expanding protected ESA along the stream bank, cleaning up trash and debris accumulated in low lying areas, re- vegetating ESA and adjacent areas with native plants, providing an earthen nature walking trail with interpretative signage along the stream channel, and utilizing bio- engineering controls for channel stabilization (Exhibit 5). The additional area added to the existing ESA would be approximately 4.99 acres, giving a ratio of new ESA area gained to ESA area lost of approximately 4.33:1. The expanded protected areas would create larger buffer zones between developed and protected areas along stream banks and would provide room for incorporating nature and recreation amenities for residents. The preserved ESA and the areas offered as mitigation would be deeded to the homeowner's association to be preserved and maintained in perpetuity. Even though no irrigation is contemplated as part of the re- vegetation efforts, the applicant has opted for overseeding the area, per Natural Resources Conservation Service guidance, to increase the chances of successfully establishing native vegetation in a landscape currently dominated by non - native species. The routing of the nature trail would avoid encroachment into ESA critical zones by maintaining a minimum 25 -foot clearance from stream channels. Bio- engineering approaches would be applied in sections of the stream channel where high velocities (exceeding 5.5 cf/sec) are expected to avoid future erosion and sedimentation problems (Exhibit 5). Potential bioengineering methods could include live stakings and plantings, coir logs and fiber rolls, revetments, fascines, riprap with vegetation, or gabions with vegetation. The final selection of the bio- engineering controls will be determined at the final platting stage when more definite drainage analysis will be done. Areas of high ecological interest, such as wetlands along the nature trail, would be featured by providing interpretative signs. The applicant foresees the planting of trees to meet tree preservation requirements within the ESA mitigation area. The proposed Alternative Environmentally Sensitive Area Plan meets the intent of Section 35.17.12 of the DDC, as it results in a high quality development. The proposed expanded ESA and associated improvements create an open space amenity for the residents of the planned single- family residential development and provides for the preservation of an existing water habitat. Consistency with the Comprehensive Plan The Denton Plan designates the site as Neighborhood Centers on the Future Land Use Map. Areas within this designation can develop in a traditional neighborhood pattern and should be "oriented inwardly, focusing on the center of the neighborhood." The center of the neighborhood should contain "uses necessary to support the surrounding neighborhood." Open space can serve as this focal point, supporting the neighborhood "with park uses including central neighborhood `greens' and floodplain preservation." The Denton Plan proposes that neighborhood centers should be located within a five to ten minute walk from the edge of the neighborhood. The proposal meets this criteria by organizing the neighborhood around a naturalized area and preserving the ESA as an amenity. Interpretive signage and an earthen nature walking trail along the edge of the ESA will provide education and recreation, and the central location of the ESA will ensure that all of the residential lots are within a ten minute walk from the amenities. As a focal point for the proposed residential neighborhood, the open space will invite residents to experience and learn from the preserved wetlands. Development Review Committee Based upon the information provided by the applicant and a recent site visit, staff finds that with the recommended conditions the request IS CONSISTENT with the surrounding land uses and general character of the area, IS CONSISTENT with the Denton Plan, and IS CONSISTENT with the Denton Development Code. CONDITIONS OF APPROVAL Based upon the analysis, the staff recommends approval of ADP 14 -0009, with the following conditions. 1. Prior to platting approval, deed restrict the expanded ESA (approximately 4.99 acres) along the stream bank as identified in Exhibit 8. The deed restrictions must include a perpetual maintenance provision for any open space by the homeowner's association. 2. Remove all trash and debris accumulated in low lying areas of the site as needed. 3. Prior to the issuance of building permits for any structure, re- vegetate the ESA and adjacent areas with native plants. 4. Prior to the issuance of building permits for any structure, provide an earthen nature walking trail with interpretative signage along the stream channel as shown on Exhibit 8. 5. Prior to the issuance of building permits for any structure, utilize bio- engineering controls for channel stabilization, which may could include live stakings /plantings, coir logs and fiber rolls, revetments, fascines, riprap with vegetation, or gabions with vegetation. GENERAL NOTES NOTE: Approval of this request shall not constitute a waiver or variance from any applicable development requirement unless specifically noted in the conditions of approval and consistent with the Denton Development Code. NOTE: All written comments made in the application and subsequent submissions of information made during the application review process, which are on file with the City of Denton, shall be considered to be binding upon the applicant, provided such comments are not at variance with the Denton Plan, Denton Development Code or other development regulations in effect at the time of development. Surrounding Zoning Designations and Current Land Use Activity: Northwest: Extraterritorial Jurisdiction Undeveloped Neighborhood Residential 6 Undeveloped North: Extraterritorial Jurisdiction Manufactured Housing Northeast: Extraterritorial Jurisdiction Undeveloped West: East: Extraterritorial Jurisdiction Extraterritorial Jurisdiction Undeveloped . $ $. ' - e- Undeveloped Neighborhood Residential 3 Neighborhood Residential 4 . - - , -. Denton Early Childhood Center, CH Undeveloped Collins Athletic Complex Southwest: South: Southeast: Community Mixed Use General Neighborhood Residential Undeveloped Neighborhood Residential 4 Mixed Use Undeveloped Neighborhood Residential 6 Single Family Residential Neighborhood Residential 6 Undeveloped Single Family Residential Source: City of Denton Geographical Information System and site visit by City staff Compatibility with the Surrounding Land Uses: The subject property is a 98 -acre parcel which juts out north from North Loop 288 along Stuart Road. It is bordered on three sides by the City's extraterritorial jurisdiction (ETJ). Much of the surrounding area is undeveloped; however, the parcel to the north of the subject property is developed with manufactured homes. Situated south of the property, across North Loop 288 is a well - established single- family residential neighborhood. The adjacent zoning districts of Community Mixed -Use General and Neighborhood Residential Mixed -Use are undeveloped, but permitted uses in each district could provide essential neighborhood services in the future. Water and Wastewater Capacity: 1. The approval of this Alternative Environmentally Sensitive Area Plan does not explicitly or implicitly approve any engineering issues, including but not limited to, access points, easement locations, or utility locations. Additional engineering comments will be provided during the platting process. Drainage 1. An overall master drainage study must be provided upon platting. Additional onsite detention may be required at that time. Roadways /Transportation Network: The alignment of Long Road running east/west from Stuart Road is required to comply generally with the City of Denton Mobility Plan. The Mobility Plan will classify the portion of Long Road that will bisect the property as a Residential Avenue Collector, requiring a 65- foot right of way dedication at platting. 2. Stuart Road from Long Road to North Loop 288 is classified as a Main Street Collector (70- foot right -of -way). Thirty -five feet measured from the centerline of street to the property line is required to be dedicated as right -of -way. 3. Stuart Road is classified as an unimproved perimeter street per Section 35.20.2.L.3.a of the DDC. Per Section 35.20.2.L.2 of the DDC, construction of 25 -foot wide concrete pavement, eight -foot wide sidewalk, curb and gutter, and required drainage improvements is required along Stuart Road frontage. 4. Based on the City of Denton Mobility Plan, a collector road is required along the North Loop 288 frontage. Dedication of 55 -foot right -of -way off the existing North Loop 288 right -of- way line is required along the North Loop 288 frontage. Construction of 25 -foot pavement, 8 -foot sidewalk and required drainage improvements is required along the North Loop 288 collector street frontage. 200 Ft Notification Boundary Exhibit 10 Notification Map and Responses SITE LOOP 288 500 Ft Notification Boundary 200ftBuffer M COD N 500ftBuffer � ,.,�,� ��.�.�,.wA �F �uuuuuuiiiif�IIIIF III�lmlllli 5 YEAR w E -- o- . �.�m �.w.� � CITY D NTON Centerline �� 7 YEAR _ OF II Il airn irnuirnag lf.Da lea aved.irrrn NiroV:w4::nll":a ) ETJ s m^, ���� 0 120 240 480 eel NOTICE OF PURLIC HEARING The Planning 2015, g and Zoning commission of the City Of Denton will hold a public hearing on Januer 21, and consider making a recorirnenctatiorr to City Council concerning an Alternative r�vironrrnentaCC Sensitive Area Ilan to allow for residential development within an existing Environmentally ern ) pp . .` � g1e�lamily residential d'evelo nlent l� - A is located n�ithin a ro os Sensitive Area (ESA). The a roatrr�atr.i 12-68-acre PS proposed ed 20ft and Stuart Load. The subject property i within ar Neighborhood R dentwat corner Noah Loop district. The site is within a Neighborhood Residential (NRA) Zoning district., The applicant is reuestia-rg the Alternative Cenrelopr°rr+ent l�lara in order to ( � coning housing', l lease refer to the City's website (see link below or tairsa na � r ae satraft analysis, � rrtial be posted parr Friday, J'anuat °y 16th, 2615, will I M tC �--VKI -VMS The McKinney hearing will start at 6:,30 p.rn, in the City Council Chambers of City Hall located at 215 E. l cP inney Street, Denton, Texas, Because You own PrOPerty within tW0 hundred (200) feet of the - ` rt Zoning ,Commission eet eiiid , i tlae l 10—r ii e and Zo . would' like to frea how you feel about this request arad irivifr s y�o r !o tteni tfre pu lid faeann "leansi , IT1 o�rc r -i" r your opin�fCan tin tab tal i lnib,'-. rolliails You this form with your ccrmrnents prior to the date of the public hearing. (This in uo wary, prohibits y ou frorra attending and Ortidr'pat#19 in the publib lrearing.) You in~n;ay faX it to the number located at the bottom or mail it to the address below or drop it Gaff in-person; Planning and Devel0l)rnent Department , Attn: Jn1111e'tlkiyatt, Project Manager 221 N. Elm ST Denton, Texas 76201 These forms are used to calculate the Oppose the request. The Commission is informed nof the percent of responses in sup o and in opposition, support and Please circle one: " Mn flavor of requesL Neutral to request deposed to request Reasons for Opposition: Printed Name: Mailing Address: / ;z.�T City, State Zip: _ a s�Lsc-- .. d T _s-c, Telephone Number: kmaal A,!o s; 'rA ✓rL W M cl I—. C p M Physical Address of Property within 200 feet: s +wa►-+ R.ntid CITY OF DENTON, TEXAS CITY HALL WEST - DE=NTON, TEXAS 767.01 940.349.8541 - (F) 940,349.7707 200' P &Z Nc)tiGN -� Exhibit 11 Planning & Zoning Commission Meeting Minutes 5. PUBLIC HEARING: A. Hold a public hearing and consider making a recommendation to City Council concerning an Alternative Environmentally Sensitive Area Plan to allow for residential development within an existing Environmentally Sensitive Area (ESA). The approximately 12.68 -acre ESA is located within a proposed 98 -acre single- family residential development (Beaver Creek), on the northwest corner of North Loop 288 and Stuart Road. The subject property is within a Neighborhood Residential 4 (NR -4) zoning district. (ADP14 -0009, Beaver Creek, Julie Wyatt Lockley introduced Wyatt. Wyatt provided the request, location map and zoning map. The Future Land Use is Neighborhood Center. She provided the Environmentally Sensitive Area (ESA) map. The outcomes of the field assessment were twofold: established the true boundaries of the ESA and determined the quality of the areas to be impacted. Due to mapping errors, the Existing ESA Map shows more areas to be impacted than what would actually occur. The ESA on site includes two classifications: Riparian Buffers and water - related habitats. Land disturbing activities are not permitted within the ESA. If developed as proposed, a total of 1.152 acres of the existing ESA would be impacted. Due to the proposed impacts to the ESA, the applicant is pursuing an Alternative Environmentally Sensitive Area Plan. It is to allow for flexibility. Staff worked with the applicant to determine mitigation aims that would meet the criteria for approval. The existing water habitat features have been incorporated into the overall design of the residential development: Lexpanding protected ESA along the stream bank by 4.99 acres, 2. cleaning up trash and debris accumulated in low lying areas, 3. re- vegetating ESA and adjacent areas with native plants, 4. providing an earthen nature walking trail with interpretative signage along the stream channel, and 5. utilizing bio- engineering controls for channel stabilization and reduce water velocities. The preserved ESA and the areas offered as mitigation would be deeded to the homeowner's association to be preserved and maintained in perpetuity. Staff sent nine Public Hearing notices to property owners within 200 feet of the subject site, and 36 Courtesy notices to property owners within 500 feet of the subject site. At this time staff has received one returned response in favor of the request; which was from the property owner. Wyatt stated staff recommends approval of this request based on the following conditions: 1. prior to platting approval, deed restrict the expanded ESA (approximately 4.99 acres) along the stream bank. The deed restrictions must include a perpetual maintenance provision for any open space by the homeowner's association. 2. Remove all trash and debris accumulated in low lying areas of the site as needed. 3. Prior to the issuance of building permits for any structure, re- vegetate the ESA and adjacent areas with native plants. 4. Prior to the issuance of building permits for any structure, provide an earthen nature walking trail with interpretative signage along the stream channel; and 5. Prior to the issuance of building permits for any structure, utilize bio- engineering controls for channel stabilization, which may could include live staking/plantings, coir logs and fiber rolls, revetments , fascines, riprap with vegetation, or gabions with vegetation. Briggle questioned the cross - hatched pattern on the ESA map. Wyatt stated it is a stream; she stated it would impact the lots or roadways. She stated that is a part of the ESA that is being impacted. Strange questioned Condition 4, the earthen nature trail. Wyatt stated she didn't want to put constraints on the trail; it could be materials they could easily maintain and use for a hiking trail for the neighborhood. Strange questioned if there is flexibility for a gravel trail and not just a concrete walkway; Wyatt agreed. Bentley referred to Condition 3, native plants. He stated his concern is that the word native isn't descriptive enough; grass is a plant. Wyatt deferred to Deborah Viera, with Watershed Protection. Bentley questioned the red and brown cross - hatched pattern towards the west of the property. Wyatt also deferred to Viera for that question as well. Wyatt stated the GIS map had the original ESA in the red. The applicant did a field assessment and determined the actual ESA is in the white area. Bentley questioned the street crossing through the ESA; and the procedure for a street within an ESA. Wyatt stated she is not sure if a bridge or something has been fully designed. She stated the applicant can address that. Chris Blevins, Pape- Dawson Engineering, 5700 West Plano Parkway, Plano, Texas. Blevins stated the southern crossing is an extension of Long Road; it would have to cross the ESA. Bentley questioned the northern crossing. Blevins stated he worked with Engineering for the layout. He stated it was determined that they could not adequately meet the City of Denton mobility plan requirements without adding another crossing. It became a point to decide to impact it, to give back more area than impacted. The impacted area would be about 1.1 acres and give back 1.5 acres. Bentley questioned if it would be a culvert crossing. Blevins agreed. Dudowicz stated he has a concern for parks and other play areas for the residents. He questioned the long area on the proposal. Wyatt stated it is an electrical easement. Dudowicz questioned if there are any plans to develop into a park; Wyatt stated it isn't a part of the discussion for this area. Dudowicz stated he has concerns that there are a lot of proposed houses with no incentive for parks and other areas in the neighborhood. Reece stated the item before this Commission is the ESA at this time. He stated that should be suggested during the future steps of the process. Viera stated the backup materials have an exhibit with the allowed plant species; she stated most of the proposal is grasses. The applicant is looking into the Tree Code requirements to see about planting trees. Bentley questioned the purpose of protecting the ESA, and allowing the culvert. Viera stated the culvert still allows the water to pass through, along with native animals to the area; they can still use it to pass through. She stated it will benefit a better habitat than what is out there now. Blevins stated he doesn't feel that the area out there warrants a bridge. Blevins stated he doesn't have a presentation other than what Wyatt presented; he is present for any questions. Reece opened the Public Hearing. Guy Klossner, 4124 Selene Drive, Denton, Texas. Klosser stated he is opposed to this request; it appears that Long Road will be extended. He stated this looks like it will be the same type of development that is on Stuart Road, a manufactured home development. This will create more traffic at Stuart Road and Loop 288 intersection. It is a dense area; there is a lot of environment to protect. There was no one else to speak on this item; Reece closed the Public Hearing. Briggle stated Klossner brought up a good point about the traffic for Stuart Road. Blevins stated per the Denton Development Code, Stuart Road would have to be improved. In the future it would require two additional lanes. Taylor stated the Public Hearing also brought up discussion on density and the adjacent properties. He stated the property to the north of the subject site isn't within the City limits. He questioned density for that property. Wyatt stated it is a manufactured home community; she doesn't have an estimate on what the density might be. Taylor questioned if mobile homes are allowed in the NR -4 zoning district. Wyatt stated they are not permitted. Bentley stated this is an ESA planned to be altered, they will be adding four acres to the new ESA, the property is zoned NR -4, which the applicant can legally develop NR -4 without coming before this Commission. The property is not platted. Lockley agreed. Commissioner Devin Taylor motioned, Commissioner Brian Bentley seconded to approve this request based on staff s conditions: 1. prior to platting approval, deed restrict the expanded ESA (approximately 4.99 acres) along the stream bank. The deed restrictions must include a perpetual maintenance provision for any open space by the homeowner's association. 2. Remove all trash and debris accumulated in low lying areas of the site as needed. 3. Prior to the issuance of building permits for any structure, re- vegetate the ESA and adjacent areas with native plants. 4. Prior to the issuance of building permits for any structure, provide an earthen nature walking trail with interpretative signage along the stream channel; and 5. Prior to the issuance of building permits for any structure, utilize bio- engineering controls for channel stabilization, which may could include live staking/plantings, coir logs and fiber rolls, revetments , fascines, riprap with vegetation, or gabions with vegetation. Motion approved (7 -0). Commissioner Brian Bentley, aye, Commissioner Frank Conner, aye, Chair Thom Reece, aye, Commissioner Frank Dudowicz, aye, Commissioner Devin Taylor, aye, Commissioner Jim Strange, aye, and Commissioner Amber Briggle, aye. sAlegal\our documcnts\ordinances\1 5\adp14-0009.docx Exhibit 12 Draft Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING AN ALTERNATIVE ENVIRONMENTALLY SENSITIVE AREA PLAN TO ALLOW FOR RESIDENTIAL DEVELOPMENT WITHIN AN EXISTING ENVIRONMENTALLY SENSITIVE AREA (ESA). THE APPROXIMATELY 12.68-ACRE ESA IS LOCATED WITHIN A PROPOSED 98-ACRE SINGLE-FAMILY RESIDENTIAL DEVELOPMENT (BEAVER CREEK), ON THE NORTHWEST CORNER OF NORTH LOOP 288 AND STUART ROAD WITHIN A NEIGHBORHOOD RESIDENTIAL 4 (NR-4) ZONING DISTRICT; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE, AND AN EFFECTIVE DATE. (ADP14-0009). WHEREAS, Pape-Dawson Engineers has applied for an Alternative Environmentally Sensitive Area Plan, a copy of which is attached hereto and made a part hereof as Exhibit "A" (the Alternative Environmentally Sensitive Area Plan), on approximately 12.68 acres of land; and WHEREAS, on January 21, 2015, the Planning and Zoning Commission conducted a public hearing as required by law, and recommended approval (7-0) of the requested Alternative Environmentally Sensitive Area Plan to establish new boundaries, as more particularly described in Exhibit "B", attached hereto; and WHEREAS, on February 21, 2015, the City Council conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set for in Section 35.17.12 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The requested Alternative Environmentally Sensitive Area Plan is hereby approved with the following conditions: 1. Prior to platting approval, the expanded ESA (approximately 4.99 acres as reflected in Exhibit "A" and further detailed in Exhibit "B") along the stream bank must be deed restricted. The deed restrictions must include a perpetual maintenance provision for any open space by the homeowner's association. 2. Remove all trash and debris accumulated in low lying areas of the site as needed. 3. Prior to the issuance of building permits for any structure, re-vegetate the ESA and adjacent areas with native plants. sAlegal\our doctiments\or(linatices\15\adp14-0009,docx 4. Prior to the issuance of building permits for any structure, provide an earthen nature walking trail with interpretative signage along the stream channel as shown on Exhibit "A". 5. Prior to the issuance of building permits for any structure, utilize bio- engineering controls for channel stabilization, which may could include live stakings/plantings, coin logs and fiber rolls, revetments, fascines, riprap with vegetation, or gabions with vegetation. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I= APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: sAlegal\ our documents \ordinances \15 \adp 14- 0009.docx Exhibit "A" Alternative Environmentally Sensitive Area Plan i M aN i" IWilu .,h` iw.. r' 1 �P /r" Yg'p, "M IT, r/ e� r iir �i Al r j � I , ESA SUMMARY yyr% / � , i% %�;�,ru t 1 oru een u >ncry (nveri eneie eo' rora, aw a nan e i e� nr LEGEND n�vv��v cs aanwnce sAlegal\our documents\ordinances\15\adp 14 -0009. docx STATE OF TEXAS COUNTY OF DENTON Exhibit "B" Legal Description Parcel I Being 4.971 acres located in the Victor Toby Survey, Abstract No. 452, City of Denton, Denton County, Texas, same being a portion of that certain 98.181 acres conveyed to Renaissance Fine Homes, Inc. by instrument of record in Volume 4851, Page 2847, Deed Records, Denton County, Texas (DRDCT), said 4.971 acres being more particularly describe by metes and bounds as follows: Commencing at the northeast corner of said 98.181 acre tract same being in the west line of Stuart Road, variable width; Thence along the north line of said 98.181 acre tract, North 89 degrees 58 minutes 28 seconds East a distance of 770.21 feet to the Point of Beginning of the herein described 4.971 acre tract of land; Thence along the interior of said 98.181 acre tract the following courses: (L) South 00 degrees 01 minutes 32 seconds West a distance of 125.84 feet to a point of curvature; (2.) Along a non-tangent curve to the left, having an are length of 111.19 feet, a radius of 50.00 feet, a delta angle of 127 degrees 24 minutes 31 seconds, and a chord bearing and distance of South 20 degrees 34 minutes 50 seconds East, 89.65 to a point; (3.) South 09 degrees 17 minutes 28 seconds East a distance of 206.06 feet to a point of curvature; (4.) Along a tangent curve to the left, having an arc length of 47.98 feet, a radius of 50.00 feet, a delta angle of 54 degrees 58 minutes 29 seconds, and a chord bearing and distance of South 36 degrees 46 minutes 42seconds East, 46.15 feet to a point; (5.) South 16 degrees 57 minutes 29 seconds East a distance of 94.05 feet to a point; (6.) South 00 degrees 21 minutes 41 seconds West a distance of 132.34 feet to a point of curvature; (7.) Along a non-tangent curve to the left, having an arc length of 78.52 feet, a radius of 50.00 feet, a delta angle of 89 degrees 58 minutes 35 seconds, and a chord bearing and distance of South 11 degrees 22 minutes 09 seconds East, 70.70 feet to a point; (8.) South 16 degrees 32 minutes 46 seconds East a distance of 132.46 feet to a point; (9.) South 88 degrees 51 minutes 13 seconds East a distance of 50.00 feet to a point; (10.) South 01 degrees 08 minutes 47 seconds West a distance of 65.00 feet to a point; (11.) North 88 degrees 51 minutes 13 seconds Wst a distance of 475.20 feet to a point; (12.) North 00 degrees 26 minutes 52 seconds East a distance of 49.37 feet to a point; (13.) South 89 degrees 33 minutes 08 seconds East a distance of 110.00 feet to a point; (14.) North 00 degrees 26 minutes 52 seconds East a distance of 100.00 feet to a point; (15.) North 04 degrees 57 minutes 36 seconds West a distance of 11.37 feet to a point; (16.) North 02 degrees 02 minutes 07 seconds East a distance of 38.69 feet to a point; Olegahour document.s\ordinances\1 5\adp14-0009.docx (17.) North 12 degrees 23 minutes 24 seconds East a distance of 64.09 feet to a point; (18.) North 30 degrees 0 1 minutes 36 seconds East a distance of 108.54 feet to a point; (19.) North 09 degrees 40 minutes 22 seconds East a distance of 27.32 feet to a point; (20.) North 16 degrees 08 minutes 35 seconds West a distance of 273.54 feet to a point; (21.) North 19 degrees 00 minutes 19 seconds West a distance of 100.13 feet to a point; (22.) North 19 degrees 00 minutes 19 seconds West a distance of 43.13 feet to a point; (23.) North 34 degrees 02 minutes 55 seconds West a distance of 17.79 feet to a point; (24.) North 05 degrees 53 minutes 42 seconds West a distance of 70.95 feet to a point; (25.) North 16 degrees 08 minutes 35 seconds West a distance of 62.19 feet to a point in the aforementioned north line of said 98.181 acre tract; (16.) South 89 degrees 58 minutes 28 seconds East, along said north line, a distance of 228.83 feet to the Point of Beginning and containing 4.971 acres of land within these metes and bounds.. Parcel 2 Being 4.249 acres located in the Victor E. Gailer Survey, Abstract No.452, City of Denton, Denton County, Texas, same being a portion of that certain 98.181 acres conveyed to Renaissance Fine Homes, Inc. by instrument of record in Volume 4851, Page 2847, Deed Records, Denton County, 'Texas (DRDC'I'), said 4.249 acres being more particularly described by metes and bounds as -follows: Commencing at the southeast corner of said 98.181 acre tract, same being in the west line of Stuart Road, variable width; Thence along the common line of said Stuart Road and said 98.181 acre tract, North 01 degree 04 minutes 38 seconds East a distance of 549.43 feet to a point; Thence continuing along said common line, North 00 degrees 21 minutes 41 seconds East a distance of 592.55 feet to the Point of Beginning of the herein described 4.249 acre tract; Thence departing said common line and along the interior of said 98.181 acre tract the following courses: (L) North 89 degrees 38 minutes 19 seconds West a distance of 86.25 feet to a point of curvature; (2.) Along a tangent curve to the right, having an arc length of 155.92 feet, a radius of 467.50 feet, a delta angle of 19 degrees 06 minutes 33 seconds, and chord bearing and distance of North 80 degrees 05 minutes 02 seconds West, 155.20 feet to a point; (3.) North 70 degrees 31 minutes 46 seconds West a distance of 88.10 feet to a point of curvature; (4.) Along a tangent curve to the left, having an arc length of 242.25 feet, a radius of 532.50 feet, a delta angle of 26 degrees 03 minutes 57 seconds, and a chord bearing and distance of North 83 degrees 33 minutes 44 seconds West, 24007 feet to a point; (5.) North 00 degrees 26 minutes 52 seconds East a distance of 257.48 -feet to a point; (6.) North 27 degrees 50 minutes 18 seconds West a distance of 56.78 feet to a point; (7.) North 08 degrees 27minutes 14 seconds West a distance of 50.61 feet to a point; (8.) North 00 degrees 48 minutes 41 seconds West a distance of 50.01 feet to a point; sAlegal\our documents\ordinances\1 5\adp 14-0009,docx (9.) North 01 degrees 01 minutes 20 seconds East a distance of 3 6.3 8 feet to a point; (10.) North 43 degrees 34 minutes 26 seconds West a distance of 5 3.3 0 feet to a point; (11.) South 88 degrees 51 minutes 13 seconds East a distance of 159.65 feet to a point; (12.) South 88 degrees 51 minutes 13 seconds East a distance of 19.05 feet to a point; (13.) South 13 degrees 43 minutes 10 seconds East a distance of 146.65 feet to a point of curvature; (14.) Along a non-tangent curve to the left, having an arc length of 153.82 feet, a radius of 50.00 feet, a delta angle of 176 degrees 15 minutes 58 seconds, and a chord bearing and distance of South 61 degrees 30 minutes 20 seconds East, 99.95 feet to a point of compound curvature; (15.) Along a tangent curve to the right having an arc length of 3 3.3 5 feet, a radius of 50.00 feet, a delta angle of 38 degrees 12 minutes 55 seconds, and a chord bearing and distance of N 49 degrees 28 minutes 09 seconds East, 32.73 feet to a point; (16.) South 00 degrees 00 minutes 00 seconds East a distance of 93.69 feet to a point; (17.) South 35 degrees 44 minutes 44 seconds East a distance of 10.67 feet to a point; (18.) South 80 degrees 57 minutes 20 seconds East a distance of 174.51 feet to a point; (19.) South 89 degrees 38 minutes 19 seconds East a distance of 126.51 feet to a point in the aforementioned common line of said 98.181 acre tract and said Stuart Road; (20.) South 00 degrees 21 minutes 41 seconds West along said common line a distance of 263.28 feet to the point of beginning and containing 4.249 acres of land within these metes and bounds. Parcel 3 Being 6.284 acres located in the Victor E. Gailer Survey, Abstract No.452, and the Thomas Toby Survey, Abstract No. 1288, City of Denton, Denton County, Texas, same being a portion of that certain 98.181 acres conveyed to Renaissance Fine Homes, Inc. by instrument of record in Volume 4851, Page 2847, Deed Records, Denton County, Texas (DRDCT), said 6.284 acres being more particularly described by metes and bounds as follows: Commencing at the southeast corner of said 98.181 acre tract; Thence along the south line of said 98.181 acre tract North 89 degrees 48 minutes 44 seconds West a distance of 241.43 feet to a point; Thence departing said south line, North 00 degrees 11 minutes 16 seconds East to the Point of Beginning of the herein described 6.284 acre tract of land; Thence along the interior of said 98.181 acre tract the following courses: (L) North 89 degrees 48 minutes 44 seconds West a distance of 244.78 feet to a point; (2.) North 00 degrees 26 minutes 52 seconds East a distance of 138.08 feet to a point; (3.) Along a non-tangent curve to the left, having an arc length of 95.03 feet, a radius of 50.00 feet, a delta angle of 108 degrees 53 minutes 46 seconds, and a chord bearing and distance of North 06 degrees 36 minutes 45 seconds West, 81.36 feet to a point; (4.) North 00 degrees 26 minutes 52 seconds East a distance of 243.38 feet to a point; (5.) Along a non-tangent curve to the left, having an arc length of 90.64 feet, a radius of 50.00 feet, a delta angle of 103 degrees 51 minutes 47 seconds, and a chord bearing and distance of North 00 degrees 26 minutes 52 seconds East,78.73 feet to a point; sAlegakour docLiments\ordinances\15\adp14-0009,docx (6.) North 00 degrees 26 minutes 52 seconds East a distance of 136.53 feet to a point; (7.) North 51 degrees 50 minutes 28 seconds East a distance of 70.37 feet to a point; (8.) North 28 degrees 13 minutes 22 seconds West a distance of 122.03 feet to a point; (9.) South 88 degrees 08 minutes 49 seconds West a distance of 10.43 feet to a point of curvature; (10.) Along a non-tangent curve to the left, having an arc length of 85.49 feet, a radius of 50.00 feet, a delta angle of 97 degrees 57 minutes 38 seconds, and a chord bearing and distance of North 50 degrees 50 minutes 00 seconds West, 75.45 feet to a point; (11.) North 28 degrees 13 minutes 22 seconds West a distance of 244.32 feet to a point of curvature; (12.) Along a non-tangent curve to the right, having an arc length of 356.76, a radius of 467.50 feet, a delta angle of 43 degrees 43 minutes 24 seconds, and a chord bearing and distance of North 87 degrees 36 minutes 32 seconds East, 348.16 feet to a point; (13.) South 70 degrees 31 minutes 46 seconds East a distance of 70.71 feet to a point; (14.) South 00 degrees 21 minutes 41 seconds West a distance of 84.95 feet to a point; (15.) South 02 degrees 20 minutes 26 seconds East a distance of 50.06 feet to a point; (16.) South 04 degrees 30 minutes 42 seconds East a distance of 50.18 feet to a point; (17.) South 07 degrees 50 minutes 26 seconds East a distance of 5 0.5 2 feet to a point; (18.) South 00 degrees 21 minutes 41 seconds West a distance of 100.00 feet to a point; (19) South 15 degrees 49 minutes 19 seconds West a distance of 51.88 feet to a point; (20.) South 00 degrees 21 minutes 41 seconds West a distance of 350.00 feet to a point; (21.) South 14 degrees 07 minutes 26 seconds West a distance of 154.43 feet to a point; (22.) South 09 degrees 33 minutes 08 seconds West a distance of 66.93 feet to a point; (23.) South 29 degrees 38 minutes 43 seconds East a distance of 152.06 feet to the Point of Beginning and containing 6.284 acres of land within these metes and bounds. Exhibit 2 Location Map l Legend N `bF uuu uuuuu�ui�� llrlllllllllllll Centerline w - � E DENTON , S Planning Delpailment G lds Parcels 0 205 410 820 eei I a " = 1 ITV 1 ,11 "11rl111U�U�U��U�U���UU1111U1 1 . Exhibit 3 Zoning Map Exhibit 4 Future Land Use Map 11 1 Ext aterritorial Jurisdiction Site ff Neighborhood Center Existing Land Use ���IlsavaGEllllllllllllll►/ . - • - - - 111 ►sF��j = } 111111111111 IIIIIIIIII'� _ 111111 ►�F �i ���_ Q ;1111111111111111111111 W = �. ME ~ ��•���i,��l� !111111 ^'� ~. "111 /Ilo, 1i to 11II�Ap`OLLO Q� � � DtXON1jjjjjI� mill 114 sH1N Is +- o,�a r 111p ::••••• �,t�111111111111111 IIIIII►r �� <qs ��■�����I mill BEALL � oil��� ,,IIII�UNp,�� �JUNOj ... ■1111�� �_ mill TO � � � � � � � �-' E1.OT�� � NONE H * In U U U S 2030V Our padh to tier¢ f,tury Legend " °' °' Proposed Lakeview Post Oak 1 Lakes Future Roadway Major Roads Parcels Future Land Use Designations Residential twl%/%/ Rural Areas Residential - Low Density Residential - Moderate Density Mixed Use Downtown Denton I {(nn4'�Ili4t`ii,f Downtown Compatibility Area IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Regional Mixed Use Community Mixed Use Neighborhood Mixed Use Neighborhood /University Compatibility Area Business Innovation ( dy r f boidno WIR 1 1VIr, l mbor ( 2010 Non - Residential IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Commercial Industrial Commerce IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Government/ Institutional Parks and Open Space N 0 0.5 1 UUDUU JJJJ/C%0000000/ J IMI II e s p�� Exhibit 5 r2iPAPS- DAW�i►O sect Narrative and Site Plan ENGINEERS LAND DEVELOPMENT ENVIRONMENTAL TRANSP0RTATIDN WATER RESOURCES S U R V E YIND July 1, 2014 Ms. Julie Wyatt Assistant Planner City of Denton 221 N. Elm Street Denton, TX 76201 RE: Alternative ESA Plan for Beaver Creek, ESA REVISED November 12, 2014 Ms. Wyatt, On behalf of LGI Homes we are submitting an Alternative Environmentally Sensitive Area Plan ( "Alternative ESA Plan ") to the City of Denton for your review and comment/approval. Included in this Alternative ESA Plan submission is the narrative found below and the Alternative ESA Plan exhibit which outlines the approved existing ESA, approved as part of ESA 14 -0004; the impacts to these ESA's from our development plan (with areas), and mitigation areas shown (with areas). The development plan currently shown has been reviewed and deemed acceptable through the pre- application phase including comments by staff and revisions to the plan. The proposed development plan will impact a total of 1.152 acres of the existing ESA with 0.613 acres of ESA impacts due to road crossings and 0.539 acres due to lot impacts. Our proposed mitigation to the impacts to the existing ESA's includes replacing impacted land area with land area adjacent to the existing ESA's along stream banks, an earthen nature walking trail along the outside edge of the proposed ESA's and at least 25' away from the stream channel in all locations. Interpretive signing will be placed in selective locations, and overall enhancement of the total proposed ESA area with seeding and cleanup will occur. The additional area added to the existing ESA would be approximately 5.0 acres giving a ratio of new ESA area gained to ESA area lost of approximately 4.33 : 1. Within the existing ESA, riparian and stream areas are filled with household trash and the upland areas are predominantly vegetated with non - native Johnson grass (Sorghum halepense). Images 1 -3 below: DALLAS / SAN ANTONIO 5700 West Plano Parkway, Suite 2500 Piano, 'texas 7509 AUSTIN / HOUSTON / FORT WORTH P ,vt_ -�o.84,94 F 214.4,20.8498 www,pape- (I:.iwsc)n.com Image l: Riparian/Stream Area Image 2: Riparian/Stream Area PfPAPE- DAWSON ENGINEERS Image 3: Upland Area After initial cleanup of the ESA, the proposed area will be overseeded with one or more of the native grasses outlined in Table 1 to choke out the Johnson Grass and establish native growth over the area. A nature trail will be constructed along the outer edges of the proposed ESA area at least 25 feet away from the creek on both sides. The nature trail will be compacted earth, or some other permeable surface to be determined at the time of final design and plan approval. At a few selective locations such as an existing wetland or other areas of significance, interpretive signing will be posted along the nature trail. Existing wetland areas will be maintained without disturbance. Existing stream channels will be maintained without disturbance except in areas where potential erosion may occur. A weir will be constructed in the area of the existing breached dam to provide for required detention. Any ESA area around the weir that would be impacted by construction activities will be returned to their natural state. During the 100 -year flood event, water will be detained for no more than 38 hours. Based on our observations in the field, this short detention period will not have any significant impacts on the vegetation or soils within the ESA. Areas within the stream channel and banks with flow velocities above 5.5 feet per second will receive bio- engineering erosion and sediment control measures that would not deter from the intended use of the ESA's that would allow natural vegetation to grow through potentially including but not limited to live stakings /plantings, coir logs and fiber rolls, revetments, fascines, rip rap with vegetation, and gabions with vegetation. The first four methods listed can include rip rap, geotextile fabric and other materials as a stabilizing component but the vegetation would mask any hard structures. Some traditional engineering treatments might be necessary at one or two locations where velocities are the highest. In these cases, every attempt will be made to mask these treatments with vegetation, soils, etc. Additionally, existing shrubs and cacti in the ESA areas will be left undisturbed (Images 4 & 5). PfPAPE- DAWSON ENGINEERS The establishment of all vegetation will follow the Natural Resources Conservation Service guidance on establishing native grasses. Table l: Selected Native Grasses from Appendix A, Criteria Manual -City of Denton Image 4: Existing cacti -to be retained pPATE- DAWSON ENGINEERS cien #ific`Nm Buffalograss Buchloe dac„ t y,,,,,,, loides Competitive against Johnson grass; turf grass Blue grama Bouteloua gracilis Short; sod - forming; drought - resistant; grows well from seed; often mixed with Buffalograss Broomsedge bluestem Andropogon virginicus Clumping; controls erosion; does well in fields and upper shores of ponds Sideoats grama Bouteloua curtipendula Sod - forming; medium -tall; drought tolerant; establishes quickly Indiangrass Sorghastrum nutans Sod - forming bunchgrass; does well in lowlands Switchgrass Panicum virgatum Tolerates standing water and drought; clumping Image 4: Existing cacti -to be retained pPATE- DAWSON ENGINEERS Image 5: Existing shrubs and cacti to be retained pfPAPE- DAWSON ENGINEERS Prior to construction, the proposed ESA will be deed restricted from future development. I}ccd restricted ozcoo would be maintained by the dcvc1opnzcu1`o h000covvucro association. Tree plantings required under tree mitigation or landscape requirements cou1dhcp1outcd in the proposed ESA thereby increasing the overall ecological value of the ESA and ensuring, through the deed restriction, that these trees will hcprotected from removal. Tree plantings would also come from the City of Denton Urcc list and would fh11ovv the City ofI}cutou`o 1oudocopc ordinance for establishment, maintenance and replacement. Planted trees will hcominimum caliper of2``o1b" high and will hco minimum of5` tall o1planting. Trees that die within 3 years will hcreplaced. Trees would hc deep watered once o week for the first two years during the growing oc000u and the tree rings will be mulched for the first two years. No ocadzctic pruning will be done for the ro t two ycoro� Tree plantings would be limited to ESA orcoo outside of the lOO year flood easement in order to maintain permanent irrigation. We Unot this application meets the ouhnzitto1 requirements of the City of Denton for an Alternative ESA Plan and wcare happy to attend future meetings ou this submittal to answer questions or provide further information if needed. Si Pape-Dawson Engineers, Inc. Texas Board of Professional Engineers, Firm Registration 9470 ' Christopher l{.81cvioo`P.E. ScuiovPrnicct Manager Exhibit 6 Existing City of Denton Environmentally Sensitive Areas Map Legend Riparian Buffers Habitat water related, Reclass Existing, 100 Existing, 50 G 1 Removed, 100 W'<.` Removed, 50 Exhibit 7 Beaver Creek Waters of the US July 2014 uetd LINV OATTTSTTOS A[IL'j U',)LUIIO IAU,,I 3AITL'U101IV S liq! x I Exhibit 9 Site Photos Looking west toward the subject site at the corner of Loop 288 and Stuart Road Looking west toward the subject site Looking north on Stuart Road Looking east from the subject site on Stuart Road Looking south toward Loop 288 and the Towne North Addition beyond City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -135, Version: 1 Legislation Text AGENDA INFORMATION SHEET AGENDA DATE: February 17, 2015 DEPARTMENT: Parks and Recreation Department ACM: John Cabrales, Jr. SUBJECT Hold a public hearing and consider adoption of an ordinance granting approval of the abandonment for park purposes of a 1.6598 acre portion of North Lakes Park in accordance with Chapter 26 of the Texas Parks and Wildlife Code; and providing an effective date. (Exhibit 1) (Parks, Recreation and Beautification Board recommend approval with a vote of 5 -0) BACKGROUND Following the receipt of an inquiry tendered by SSR Group, LP, (a Rayzor Companies Limited Partnership), which proposed a land -swap, or a land -swap plus compensation, in exchange for this parcel of park property, the City Council discussed the potential sale in Closed Session on July 15, 2014 (ID 14- 0338). (Exhibit 2) The subject property is a 1.6598 acre tract of land on the southwest corner of the North Lakes Park boundary, south of the earthen dam embankment. The tract does not have direct functionality with programming of an active or passive nature associated with North Lakes Park. Consequently, the potential sale of this parcel was included on the November 2014 General Election ballot for public consideration and passed with a majority vote in support (Exhibit 3), which enables the City to entertain purchase proposals and /or elicit requests for proposal upon attaining consent consistent with the Texas Parks and Wildlife Code, Chapter 26 proceeding, as set forth below: Texas State law as defined in Chapter 26, Protection of Public Parks and Recreational Lands, of the Texas Parks and Wildlife Code requires that: (a) a municipality of this state inay not approve any prograin or project that requires the use or taking of any public land designated and used prior to the arrangement of the program or project as a park unless the municipality, acting through its duly authorized governing body or officer, deter mines that: (1) these is no feasible and prudent alternative to the use or taking of such land; and (2) the prograin or project includes all seasonable planning to ininiinize harin to the land, as a park, resulting fsoin the use or taking. (b) A finding inay be inade only after notice and a hearing as required by this chapter. " The Parks and Recreation Department has satisfied publication requirements set forth in Chapter 26 of the Texas Parks and Wildlife Code and affirm they have investigated and determined there would be no major City of Denton Page 1 of 2 Printed on 2/12/2015 File #: ID 15 -135, Version: 1 active or passive impact on park operations or programs resulting from the sale of this parcel of park property. OPTIONS A majority of Denton Voters approved the sale of this park property in the November 2014 General Election, and the Parks, Recreation and Beautification Board considered this matter on February 2, 2015, endorsed the public vote and opted to unanimously support the sale of this parcel of park property. Lacking any opposition at the Chapter 26 Public Hearing, the City Council may elect to adopt the ordinance (Exhibit 5) and go forward in soliciting Requests for Proposals. The City Council may deny this request and North Lakes Park will retain its current configuration. RECOMMENDATION The Parks and Recreation Department and the Parks, Recreation and Beautification Board recommends the City solicit and entertain proposals for the sale of this parcel of park property, with resulting proceeds to benefit the Parks Department. ESTIMATED SCHEDULE OF PROJECT Acceptance of proposals for the sale of this property is projected in May 2015. PRIOR ACTION/REVIEW On July 15, 2014, The City Council considered this topic in closed session item (ID 14- 0338). The November 2014 General Election - public majority voted in support of a sale /trade. Parks, Recreation and Beautification Board's February 2, 2015, Meeting - recommendation in support of a sale /trade. EXHIBITS: Exhibit 1 - Map of park parcel subject to sale Exhibit 2 - SSRG inquiry Exhibit 3 - Ordinance re: Vote canvas Exhibit 4 - Excerpt of Park Board Minutes/Vote dated February 2, 2015 Exhibit 5 - Proposed ordinance with Attachment A Respectfully Submitted: Emerson Vorel, Director Parks and Recreation Department Prepared by: James M. Mays, Superintendent Parks and Recreation Department City of Denton Page 2 of 2 Printed on 2/12/2015 co 0 z -P-j co co 00 0') LO (.0 V-- O E O C) C) cc� O cl 0 0 00 O Q' -5 < U) I wl� -i —) � 0 O >, cu '15 1 2 =5 .— 0 cu m C) E 3: is =3 LO (D 0) o _0 (D C,4 z 06 (D 2 o m =3 c N V"I V, CA f I w4 N "T I i Ni V(J _VII AV CL LM CL 0 O E O C) C) cc� O cl 0 0 00 O Q' -5 < U) I wl� -i —) � 0 O >, cu '15 1 2 =5 .— 0 cu m C) E 3: is =3 LO (D 0) o _0 (D C,4 z 06 (D 2 o m =3 c SSR Group LP P. 0. Box 336 lenton, Texas 76202-033q Telephone (940) 387.8711 Fax (940) 566-1591 IMPJAM Mr. George Campbell City Manager, City of Denton, Texas 215 E. McKinney Denton, TX 76201 wwrjM='M'j Exhibit 2 Please call ine at your convenience if you have any questions or need additional infon-nation. Thanks. OEM= MONE M, 1-700010K�,' �f�,11]11111 1� Exhibit 3 C:AUsers \101240\AppData \Local \Microsoft\Windows \Temporary Internet Files \Content.Outlook \B9MD3M4X \Ordinance Canvassing Election on sale of park property (2).docx ORDINANCE NO. AN ORDINANCE CANVASSING THE RETURNS AND DECLARING THE RESULTS OF AN ELECTION HELD IN THE CITY OF DENTON, TEXAS, ON NOVEMBER 4, 2014, FOR THE PURPOSE OF DETERMINING WHETHER TO ENACT AN ORDINANCE AUTHORIZING THE SALE OF REAL PROPERTY CONSISTING OF 1.6598± ACRES AND BEING A PORTION OF NORTH LAKES PARK OWNED, HELD, OR CLAIMED AS A PARK AND BEING A TRACT OF LAND IN THE ROBERT BEAUMONT SURVEY, ABSTRACT NO. 31, AND BEING A PORTION OF THAT CERTAIN TRACT CONVEYED TO SAID CITY OF DENTON BY DEED RECORDED IN VOLUME 647, PAGE 245, OF THE DENTON COUNTY DEED RECORDS; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds and declares that the November 4, 2014 regular municipal election was duly ordered for the purpose of putting the question before the City of Denton voters of determining whether to adopt an ordinance of the City Council of the City of Denton, Texas, authorizing the sale of real property consisting of 1.6598± acres and being a portion of North Lakes Park owned, held, or claimed as a park and being a tract of land in the Robert Beaumont survey, Abstract No. 31, and being a portion of that certain tract conveyed to said City of Denton by deed recorded in volume 647, page 245, of the Denton County deed records; that proper notice of said election was duly given and election officials appointed; that the election was duly held and the returns of the election officials have been delivered to the Council, all in accordance with the laws of the State of Texas and the Charter and ordinances of the City of Denton. SECTION 2. The official returns of the election officials having been opened, examined, and canvassed, and the Council hereby finds and declares that ballots were cast at the election, and that the votes cast for the Proposition stated below were as follows: EARLY VOTING: PROPOSITION SHALL AN ORDINANCE BE ENACTED AUTHORIZING THE SALE OF REAL PROPERTY CONSISTING OF 1.6598± ACRES AND BEING A PORTION OF NORTH LAKES PARK OWNED, HELD, OR CLAIMED AS A PARK AND BEING A TRACT OF LAND IN THE ROBERT BEAUMONT SURVEY, ABSTRACT NO. 31, AND BEING A PORTION OF THAT CERTAIN TRACT CONVEYED TO SAID CITY OF DENTON BY DEED RECORDED IN VOLUME 647, PAGE 245, OF THE DENTON COUNTY DEED RECORDS? YES 8,527 NO 6,824 c:A users\ 101240 \appdata\local\microsoft \windows \temporary internet files \content.outlook \b9md3m4x \ordinance canvassing election on sale of park property (2).docx ELECTION DAY VOTING: PROPOSITION SHALL AN ORDINANCE BE ENACTED AUTHORIZING THE SALE OF REAL PROPERTY CONSISTING OF 1.6598± ACRES AND BEING A PORTION OF NORTH LAKES PARK OWNED, HELD, OR CLAIMED AS A PARK AND BEING A TRACT OF LAND IN THE ROBERT BEAUMONT SURVEY, ABSTRACT NO. 31, AND BEING A PORTION OF THAT CERTAIN TRACT CONVEYED TO SAID CITY OF DENTON BY DEED RECORDED IN VOLUME 647, PAGE 245, OF THE DENTON COUNTY DEED RECORDS? TOTAL VOTES CAST: YES 3,851 NO 3,928 PROPOSITION SHALL AN ORDINANCE BE ENACTED AUTHORIZING THE SALE OF REAL PROPERTY CONSISTING OF 1.6598± ACRES AND BEING A PORTION OF NORTH LAKES PARK OWNED, HELD, OR CLAIMED AS A PARK AND BEING A TRACT OF LAND IN THE ROBERT BEAUMONT SURVEY, ABSTRACT NO. 31, AND BEING A PORTION OF THAT CERTAIN TRACT CONVEYED TO SAID CITY OF DENTON BY DEED RECORDED IN VOLUME 647, PAGE 245, OF THE DENTON COUNTY DEED RECORDS? YES 12,378 NO 10,752 SECTION 3. 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 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12014. CHRIS WATTS, MAYOR Page 2 c:A users\ 101240 \appdata\local\microsoft \windows \temporary internet files \content.outlook \b9md3m4x \ordinance canvassing election on Sale of park property (2).docx ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 3 Exhibit 4 1 EXCERPT from DRAFT MINUTES PARKS, RECREATION AND BEAUTIFICATION BOARD February 2, 2015 Civic Center Community Room After determining that a quorum of the City of Denton, Texas, Parks, Recreation and Beautification Board is present, the Chair of the Board thereafter convened into an open meeting on Monday, February 2, 2015, at 6:08 p.m. in the Denton Civic Center, 321 E. McKinney Street, Denton, Texas. Members Present: Russ Stukel, Chair; Alex Lieban, Paul Leslie, Vicki Byrd and Janet Shelton Staff present: Emerson Vorel, Julie Leal, John Schubert and Jim Mays OPEN MEETING ACTION ITEM: Consider making a recommendation to the Denton City Council regarding the following item: Chapter 26: Proposed sale of 1.6598 acres of the southwest corner of North Lakes Park This matter, having been presented as a discussion item at the October 23, 2014, meeting of the Park Board, required minimal Member discussion with the exception of the following: Member Lieban wondered if cash proceeds from a sale would go to the general fund or to the Parks Department, to which Vorel responded they'd become proceeds of the Parks Department consistent with state law associated with the acceptance of grants to develop the property. Chairman Stukel made inquiry about the bidding system and wondered if it was exclusive. Vorel responded that no one is prevented from extending an offer for purchase. Member Lieban suggested that a land swap was practical, as long as the value was similar, and /or a land swap with added compensation for equity purposes may also be a worthwhile option. There being no further discussion on this topic, Chairman Stukel asked for a motion to recommend approval of the proposed sale of 1.6598 acres of the southwest corner of North Lakes Park. MOTION: Member Lieban made a motion to recommend approval; Member Shelton seconded, and the item passed unanimously with a vote of 5 -0. Meeting adjourned at 7:15 p.m. SALegaMur Documents\Ordinanccs\l 51Chap 26 Ordinance North Lakes Park.doc KIM 5 6 rM IM V r-10 0 5 rOWMALMA -4-P V EM25*2*X6#VAM1,- � Exhibit 5 WHEREAS, Section 26.001 of the Texas Parks of Wildlife Code provides that public land designated and used as a park may be used for a non-park purpose if the City Council finds after notice and hearing that there is not feasible and prudent alternative to the use of such land for the proposed project and the proposed project includes all reasonable planning to minimize harm to the park resulting from such use; and WHEREAS, the City of Denton desires to abandon the use for park purposes of a 1.6598 acre portion of North Lakes Park as set forth in Attachment A hereto; and WHEREAS, on August 12, 2014, the City Council adopted an ordinance expressing its desire to sell said land and declaring it to be excess property. WHEREAS, on November 4, 2014, and election was held in which the proposition to sell the said land was approved by the voters; and WHEREAS, the City provided notice in the Denton Record-Chronicle on January 16, January 21, January 28, and February 6, 2015, of a Public Hearing to be held on February 17, 2015, in the Council Chambers to consider the alternatives to the use of North Lakes Park; and WHEREAS, the City Council on February 17, 2015, received testimony at a public hearing on the issues of no feasible and prudent alternative to the use of the property for the proposed project and that the project includes all reasonable planning to minimize harm to the remaining portion of North Lakes Park; and WHEREAS, the City Council finds that the project does not fall within the purview of Section 253.001 of the Texas Local Government Code; and WHEREAS, the City Council finds that there is no feasible and prudent alternative to the use of the park land and that the abandonment for park purposes and proposed sale of the land includes all reasonable planning to minimize harm to the remainder of North Lakes Park; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby abandons for park purposes a 1.6598 acre portion of North Lakes Park as set forth in Attachment A hereto. SECTION 2. The findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. no 0909110:114 0 00911F.A1110111 -MEN �/ -- -- NO CHRIS WATTS, MAYOR Page 2 of 2 In fi ru ........... Exhibit A (I of 3) a. U Exhibit A (2 of 3) DESCRIPTION OF PROPERTY SURVEYED SITUATED in the City at Denton and being a tract of land in the ROBERT BEAUMO• SURVEY, Abstract No, 31, and being a portion of that certain tract conveyed to said City of Denton byideed recorded in Volume 647, Page 245, of the Denton County Deed Records, and said portion being more fully described as follows: BEGINNING at an "RPLS 1640" capped 5/8"Iron rod found in place for the northeast corner of that certain right -of -way for Bonnie Brae Drive conveyed to said City of Denton by instrument recorded Linder Denton County Cierk's File No, 2009-3362, said point being also in the southerly line of said City of Denton tract (6471245) and the northerly line of that certain tract conveyed to SSR Group by instrument recorded under Clerk's File No, 2013-125701; THENCE Worth 0 degrees, 34 minutes, 55 seconds East with the present east line of said Bonnie Brae Drive, across a portion of said City of Denton tract (647/245), 264.58 feet to on "RPLS 1640" capped 5/8" iron rod set for corner, THENCE South 44 degrees, 25 minutes, 05 seconds East, departing said east line of Bonnie Brae Street, crossing a portion of said City of Denton tract (647/2415), 14.14 feet to an angle point, from which point on "RPLS 1640" capped 5/8" iron rod set for reference bears North 87 degrees West, 1.11 feet; THENCE continuing across said City of Denton tract (6471245), the following courses and distances: South 89 degrees, 25 minutes, 05 seconds East, 10,0 feet to an "RPLS 1640" capped 5/8" iron rod set for the beginning of a curve whose center bears South 0 degrees, 34 minutes, 55 seconds West, 190.0 feet; easterly with said curve, a distance of 45.36 feet to on "RPLS 164D" capped 5/8" iron rod set for the end of said curve; South 75 degrees, 45 minutes, 30 seconds East, 32.30 feel to an "RPLS 1640" capped 5/8" iron rod set for the beginning of a curve whose center bears North 14 degrees, 14 minutes, 30 seconds East, 200.0 feet; easterly with said curve, a distance of 90.98 feet to an "RPLS 1640" capped 5/8" Iron rod set for the end of said curve: North 78 degrees, 11 minutes, 30 seconds East, 44.03 feet to the beginning of a curve whose center bears South 11 degrees, 48 minutes, 30 seconds East, 1544,0 feet; easterly with said curve, a distance of 329.06 feet to the end of said curve; South 89 degrees, t A minutes, 20 seconds East. 42.06 feet to a point in the souilherty line of said City of Denton tract (647/245) and the northerly line of that certain tract conveyed to the SSR Group, LP, by deed recorded under County Clerk's File No, 20113-125702,, Exhibit A (3 of 3) 0y of denton poge.? THENCE South 66 degrees, 07 minutes. 15 seconds West With said southerly line of City of Denton tract (647/2451 and northerly line of said SSR Group tract described In instrument in Clerk's File No, 2013- 125702 and continuing with the northerly line of said SSR Group tract described in instrument in Clerk's File No. 2013-125701. in all 662.45 feet to the PLACE OF BEGINNING, and containing 1.6598 acres (72,302 square feet). This description prepared to accompany a survey mop of the described tract. The base bearing for this tract Is the bearing along the easterly line of 1-35 nearby, transferred to this site as a part of a uniform bearing basis for several properties. The subject property was a part of those associated properties and the bearing established with monumentotion on this property. The noted monumentation along 1-35 Is no longer in place at the time of this survey. GERRY CURTIS ASSOCIATES, INC., Surveyors TBPLS Firm No. 10081300 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: DCA14- 0009c, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning & Development CM/ ACM: John Cabrales, Jr. Date: February 17, 2015 SUBJECT Continue a public hearing and consider adoption of an ordinance amending Subchapters 5, 7, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; amending Ordinance No. 2013 -248, relating to planning and development fees and road damage remediation fees relating to gas well drilling and production activities; adding new Subchapter 22A to the Denton Development Code, relating to Oil and Gas Pipelines, Definitions, Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009c). The Planning and Zoning Commission recommends denial (4 -3). A super inajority vote by City Council is required to adopt a motion to approve this ordinance. BACKGROUND On May 6, 2014, the City Council passed and approved City Ordinance No. 2014 -137 declaring a moratorium on the receipt, processing, and approval of certain applications for gas well permits, specific use permits (SUP), site plans, development plans, or amendments as they relate to gas well drilling and production activities. The moratorium ordinance recites that the City Council is aware of an increased interest in, and concern about, gas exploration and production and has received from the public a multitude of environmental and land use compatibility concerns regarding the City's ordinances and regulations now applicable to gas well drilling and production activities. In adopting the moratorium ordinance, the City Council announced that it believed it was reasonable and necessary to again review the municipal ordinances and regulations germane to gas well drilling and production operations. City staff was charged with the responsibility to make the important changes. In charging the staff with revising the ordinances, City Council recognized that the City's current regulations may not fully implement the City's goals of allowing gas well operations while protecting the public's health, safety, and general welfare. In addition, the City Council witnessed the conflict between increased drilling and urban expansion and acknowledged the need to regulate the conflicting land use issues between gas well operations and surface owners seeking the peaceful and quiet enjoyment of their property. The potentially harmful impacts of gas well drilling and production within the City fall most heavily upon existing neighborhoods and properties adjacent and in close proximity to gas well drilling and production operations. Several sections of the Denton Development Code (DDC) are proposed for revision to address these concerns. The proposed revisions are described in further detail under the Proposal heading. The proposals are based upon the work performed by the gas well Task Force that convened during 2012, the Denton Area Drilling Advisory Group (DAG), the Planning and Zoning Commission, as well as the multitude of public City of Denton Page 1 of 5 Printed on 2/12/2015 File #: DCA14- 0009c, Version: 1 comments received before these groups and numerous City Council deliberations on various issues germane to gas well drilling and production. In addition, the City staff and the City Council reviewed numerous published articles regarding the impacts of gas well drilling, including: 1. Best Practices Handbook to Assist Communities in the Eagle Ford Shale, 2nd Edition, Identification and Implementation of Best Practices, San Antonio River Authority; 2. Visual Impacts of Natural Gas Drilling in the Marcellus Shale Region, Cornell University, Dept. of City and Regional Planning: CRP 3072 Land Use, Environmental Planning, and Urban Design Workshop, Fall 2010, Sarita Rose Upadhyay and Min Bu; 3. Demonstrating the Impacts of Oil and Gas Exploration on Water Quality and How to Minimize these Impacts Through Targeted Monitoring Activities and Local Ordinances, Kenneth E. Banks, Ph.D and David J. Wachal, M.S. in Cooperation with the United States Environmental Protection Agency; 4. Oil and Gas Regulation: A Guide for Local Governments, Colorado Department of Local Affairs; 5. Shale Gas Production Subcommittee 90 -Day Report, August 18, 2011, Secretary of Energy Advisory Board, U.S. Department of Energy; 6. Development, Land Use, and Collective Trauma; The Marcellus Shale Gas Boom in Rural Pennsylvania, Simona L. Perry, The Journal of Culture & Agriculture; 7. Modern Shale Gas Development in the United State: A Primer, April 2009, U.S. Department of Energy; 8. Environmental Impacts of Unconventional Natural Gas Development and Production, May 29, 2014, U.S. Department of Energy; 9. A Comprehensive Economic Impact Analysis of Natural Gas Extraction in the Marcellus Shale, May 2011, Susan Christopherson and Ned Rightor, Cornell University; 10. Recommended Best Practices for Marcellus Shale Gas Development in Maryland, Keith N. Eshleman & Andrew Elmore, Appalachain Laboratory, University of Maryland Center for Environmental Science; 11. Landscape Consequences of Natural Gas Extraction in Bradford and Washington Counties, Pennsylvania, 2004 -2010, E.T. Slonecker, L.E. Milheim, C.M. Roig- Silva, A.R. Malizia, D.A. Marr, and G.B. Fisher, U.S. Department of the Interior; 12. A Menu of State Policy Good Practices for Unconventional Natural Gas Development, 2014, General Electric Company; 13. Practices For Mitigating Surface Impacts Associated with Hydraulic Fracturing, American Petroleum Institute; 14. Hydrofracking: Disturbances Both Geological and Political: Who Decides? By John R. Nolon and Victoria Polidoro, 44 Urb. Law. 507 (2012); and 15. Oil and Gas Fracking: State and Federal Regulation Does not Preempt Needed Local Government Regulation by Dr. Robert H. Freilich and Neil M. Popowitz, 44 Ur. Law. 533 (2012). This item has been presented on six separate agendas before both the P &Z and City Council. The initial presentation of the clean and redline draft ordinances occurred during a joint public hearing on December 16, 2014. On that date, the P &Z closed their public hearing, but delayed action as an Item for Individual Consideration and City Council continued their portion of the public hearing. On January 6, 2015, City Council again continued their public hearing and on January 7, 2015, the P &Z further delayed their action. The delays provided City staff with an opportunity to address questions raised by the general public, the P &Z, and City Council during the December 16, 2014 public hearing. The questions were researched and answers were City of Denton Page 2 of 5 Printed on 2/12/2015 File #: DCA14- 0009c, Version: 1 provided to both the City Council and P &Z. In addition, the responses were published to the City's website for public viewing. City Council again continued their public hearing for DCA14 -009 during their January 13, 2015 meeting. This continuation was not date specific and instead was continued to an event certain. The specific event was the receipt of P &Z's recommendation report. The P &Z once again had an agenda item for DCA14 -0009 and delayed their action during the January 21, 2015 meeting until their February 4, 2015 meeting. Additional questions were raised by the public and various P &Z Commissioners over the course of deliberation during the agenda discussions that occurred in front of both bodies. The responses to these additional questions were presented and discussed with P &Z during their closed session meeting posted for the February 4, 2015 meeting. These additional responses were also posted to the City's website for public viewing. In light of all the discussions, question and answer sessions, and deliberations by both bodies, the P &Z voted 4- 3 on February 4, 2015 to recommend denial of DCA14 -0009, as initially presented. The P &Z recommendation vote is forwarded as a report to the City Council for final action. Per the City of Denton's charter and state laws germane to general zoning regulations, the City Council provides that the affirmative vote of at least three - fourths (3/4) or a supermajority of all its members is required to overrule a recommendation of the City's P &Z that a proposed change to a regulation be denied. As such, any action by the City Council to adopt all, or portions of, the proposed ordinance amending Subchapters 5, 7, 16 and 22 of the Denton Development Code, or to make revisions to any of the presented ordinances, shall require an affirmative vote of at least three - fourths (3/4) of all its members. A copy of the draft minutes from the February 4, 2015 P &Z meeting are included as Exhibit 10. The minutes provide further detail regarding the wording of the motion and the subsequent discussions that occurred by the P &Z commissioners. The motion was made by Commissioner Strange and seconded by Commissioner Connor. In making the motion, Commissioner Strange referenced his thoughts for the purpose of the revisions. While those ideas do not fully incorporate the reasons and details presented in this report, the commissioner expressed concern that the ordinance revisions go further than the State's permitting requirements germane to oil and gas drilling and production activities. Commissioner Strange also shared his concern about the proposed ordinance's impact to vested rights and a potential takings claim. After both the 4 -3 vote and Future Agenda Items section of the agenda, several additional comments were proffered to describe the rationale behind the respective commissioner's actions. Commissioner Briggle asked about the responses provided in the question and answer documents and whether any recommendations for amending the presented ordinances will be forwarded to City Council. In addition, Commissioner Connor clarified that his position is not that he is opposed to the ordinance, but rather he mentioned the ordinance puts restrictions on business that can impact vested rights. Commissioner Connor summarized his concerns by stating he is worried about the long -term impact from lawsuits and putting restrictions on oil and gas companies. Finally, Commissioner Dudowicz agreed with Commissioner Connor and further stated he felt the current ordinance is "pretty tight with the added stuff to it;" however, the new ordinance could be litigated against the City and wipeout the current ordinance along with any revisions. Commissioner Dudowicz stated he was not willing to take the risk that a lawsuit would challenge the revised ordinance and result in the negating of other ordinances. PROPOSAL The proposed revisions are intended to remedy the impacts of gas well drilling in an urban environment, to include noise, dust, odor, light pollution, vibrations, fire safety, visual aesthetics, e.g., fencing and landscaping, construction standards and materials, buffers, preservation of surface property values and the character of City of Denton Page 3 of 5 Printed on 2/12/2015 File #: DCA14- 0009c, Version: 1 neighborhoods, incompatibility, infrastructure related to public health and welfare such as water wells, setbacks, landscaping, public notice, signage, issues related to operating hours, operator insurance issues, road impacts, and other quality of life issues. Subchapter 22 of the Denton Development Code (DDC) was reorganized to enable both staff and operators to better understand the requirements for gas wells inside the city limits. In addition to changes contained within Subchapter 22, additional DDC Chapters will be revised. In some cases, existing provisions have been amended, such as for Subchapter 5, which contains the use charts and the limitations by type of zoning district. In other cases, an entire new subsection is being added, such as the provisions relating to the Gas Well Combining District, which is proposed as an addition to Subchapter 7, pertaining to overlay districts. The list of new ordinance amendments is as follows: 1) Amendments to Subchapter 5, Zoning Districts and Limitations. Changes use chart designations and limitations for "gas wells "; 2) Amendments to Subchapter 7, Special Purpose and Overlay Districts, adds new subsection 22.7.16, Gas Well Combining Districts; 3) Amendments to Fee Ordinance 2013 -248; 4) Amendments to Subchapter 16, Subdivisions, etc.; and 5) Addition of Subchapter 22.A, Oil and Gas Pipeline Ordinance While specific language changes are found throughout the redlined exhibits attached herein and will be further defined during the public presentation, the main themes of the revised ordinance are summarized in the table as Exhibit 1. OPTIONS 1. Uphold the P &Z recommendation for denial. 2. Overturn the P &Z recommendation by a 3/4 vote to approve as submitted. 3. Overturn the P &Z recommendation by a 3/4 vote to approve with conditions. 4. Continue the Public Hearing. 5. Close the Public Hearing and Table action on the item. RECOMMENDATIONS On February 4, 2015, the Planning and Zoning Commission voted 4 -3 to recommend DENIAL of DCA14- 0009. The Development Review Committee recommends APPROVAL of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On December 16, 2014, the City Council and Planning and Zoning Commission (P &Z) held a joint Public Hearing concerning ordinance amendments to Subchapters 5, 7, 16, and 22 of the Denton Development Code. City Council continued the public hearing to their January 6, 2015 meeting and P &Z closed their public hearing, but delayed action as an Item for Individual Consideration. On January 6, 2015, City Council voted 6 -0 to continue the public hearing for DCA14 -0009 to their next meeting. On January 7, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. City of Denton Page 4 of 5 Printed on 2/12/2015 File #: DCA14- 0009c, Version: 1 On January 13, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to an event certain, which is the meeting following receipt of a recommendation report from P &Z. On January 21, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. On February 4, 2015, P &Z voted 4 -3 to recommend DENIAL of DCA14 -0009, as presented. EXHIBITS 1. Table of Revised Ordinances 2. Clean Ordinance and Redlined Draft of DDC Subchapter 22 3. Clean Ordinance and Redlined Draft of DDC Subchapter 7 4. Clean Ordinance and Redlined Draft of DDC Subchapter 16 5. Clean Ordinance and Redlined Draft of DDC Subchapter 5 6. Clean Ordinance and Redlined Draft of DDC Subchapter 22A 7. Fee Ordinance 8. Public Responses to CC and P &Z from Dec 2014 meeting 9. Public Responses to Additional Questions from P &Z and the Public 10. Draft Minutes of the February 4, 2015 P &Z Meeting Respectfully submitted: Brian Lockley, AICP, CPM Planning & Development Department Director Prepared by: Darren Groth, AICP, CPM, REP Gas Well Administrator City of Denton Page 5 of 5 Printed on 2/12/2015 Exhibit 1 TOplc Existing Ordinance Proposed Ordinance Production No such program. Inspections performed by 3rd Party will now determine Monitoring if equipment is properly functioning. New DDC Subchapter 22.A fulfills objective to capture Pipeline No such program. all authority allowed under state law in order to map Regulations gas pipelines within the city of Denton and its extraterritorial jurisdiction. Surface plats will now note the location of the Pad Site; existence of well(s); possibility of new wells; Gas Well Recently used in two land possibility of more drilling and fracturing; possibility of Notifications development examples. re- working. In addition, Declaration of Restrictive and Disclosures Covenant shall advise purchasers of existence of well(s) and notice document shall be recorded in County Clerk's Office. Proposal intended to minimize surface impacts; select optimum surface site location within leased acreage; capitalize on technological advances to require co- location of multiple wells on a single site; open land for surface development; and restrict leased acreage from Co- Location No such program. future gas well development. Every new well will require approval of Consolidated Site, in accordance with the following scenarios: 1. Combining District (City Council rezoning) for new sites. 2. Consolidation Permit (administrative review) for existing sites. Each Operator must produce a certificate of insurance and copy of endorsements adding city as additional insured. If the insurance is cancelled, the gas well Permit will be suspended. The insurance must be issued by financially sound company. The expert recommended the following insurance coverage: • Commercial General Liability = $1M /occurrence with Existing coverage a $2M aggregate. Operator reviewed by legal expert • Environmental Impairment = $5M (up from $1M). If Insurance with specific insurance "claims made" coverage, 4 yrs after Gas Well Permit experience. expiration. • Auto Liability = $1 M /accident. • Worker's Comp = $1M /accident and $1M /disease (up from $100,000 /accident). • Umbrella Liability = $24M per occurrence w/ $24M aggregate. Coverage in excess of commercial general, auto, & workers comp. • Control of Well = $5M per occurrence Exhibit 10 Draft Minutes of the February 4, 2015 P &Z Meeting 1. ITEM FOR INDIVIDUAL CONSIDERATION: A. Consider making a recommendation to City Council regarding an ordinance amending Subchapters 5, 7, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; amending Ordinance No. 2013 -248, relating to planning and development fees and road damage remediation fees relating to gas well drilling and production activities; adding new Subchapter 22A to the Denton Development Code, relating to Oil and Gas Pipelines, Definitions, Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date. (DCA14 -0009, Development Code Amendments, Darren Groth) Reece introduced Munal Mauladad, Assistant Director of Planning and Development. Mauladad stated Groth will provide a brief synopsis of this item. Groth stated this item is carried over from the December 16, 2015, Joint City Council Planning and Zoning Commission meeting. He stated there were several questions discussed during that meeting. The ordinance was posted after the meeting, comments were received, and drafted into a Question and Answer form, which was later placed on the City of Denton website. He stated he doesn't have a presentation since this is a continued item. Strange stated this Commission and staff have worked on this item for a while now. The ordinance came before this Commission to clean up the definitions. He stated over the last few months there have been numerous additions to the ordinance. Then there was the request for a moratorium. Throughout that process this Commission has expressed their concerns that the City is binding them in this ordinance; because, it goes earlier than what the state requirements allow. He stated he also has concerns of the principles of vesting that the existing wells have. He stated the vested rights will go away. Strange stated he cannot support a motion for this item to move forward. He would motion to deny this item. Conner stated he would second the motion for denial. Briggle questioned if she could make a superior motion. Leal stated there are superior motions; such as to postpone the item to a date certain or to amend the motion on the table. He stated a counter motion is not allowed. Briggle acknowledged; she stated the vote will continue and if it fails then there can be another motion. Leal confirmed. Bentley stated he understands the concerns of Strange and Conner. He stated he has other issues that can be addressed if this item moves forward. This is a recommendation to City Council; this Commission is not the final decision of this item. Bentley stated he will not support the motion at this time to deny the item; he feels it needs to move forward. Taylor stated he remembers the process a little differently than Strange recalls the process. This revision came during the last revision that was in process. At the time of approval there were several items that were pushed off to be done in the future, and some were thought to have been completed administratively. He stated although the ordinance is not perfect, there are still good items in the ordinance that should be moved forward. He stated he also cannot support the motion to deny this request. Commissioner Jim Strange motioned, Commissioner Frank Conner seconded to deny this request. Motion carried (4 -3). Commissioner Jim Strange, aye, Commissioner Frank Conner, aye, Commissioner Frank Dudowicz, aye, and Chair Thom Reece, aye. Commissioner Amber Briggle, nay, Commissioner Brian Bentley, nay, and Commissioner Devin Taylor, nay. 2. FUTURE AGENDA ITEMS: Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the Planning and Zoning Commission 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. Mauladad stated staff will be providing a report in the future to discuss an outline to the plats, she stated it will be very brief, but will help this Commission understand the plats. Bentley stated the vote from Item for Individual Consideration 3A was a shock to a majority of this Commission. He stated this Commission has the power to reopen the item and postpone it to a date certain. Leal stated the vote was taken so the item is finished at this time. He stated Bentley is probably referring to a Motion for Reconsideration from Chapter 2 of the City code. He stated since this is a zoning item as well, the zoning law trumps the city code. The motion will now move forward to City Council. If they choose the option to vote for the ordinance over the recommended denial from this Commission then a Super Majority vote would be required. Briggle referred to the amendments that this Commission has; she questioned if they would be submitted to City Council in the backup materials. Leal stated no. Conner stated he doesn't have an issue with the ordinance. He stated it is the best attempt; however, it puts restrictions on businesses that can later get into a lawsuit. He stated he is concerned for the City's future. Dudowicz stated he agrees with Conner. He stated this would be putting this Commission into a place that the current ordinance is tight; there could be litigation against the City. Leal stated this discussion is not on the agenda. There was no further discussion. Chair Reece adjourned the Regular Meeting at 7:36 p.m. Exhibit 2 35.22.1. - Purpose, Authority and Applicability. A. Purpose. The drilling and production of gas and the development of gas well facilities within the corporate limits of the City necessitate promulgation of reasonable regulations to prevent devaluation of property; to protect watersheds; to prevent deleterious uses of groundwater resources that actually or potentially threaten the health of persons in proximity to drilling and production activities; to monitor noxious emissions of gases that potentially threaten the health of nearby residents and employees; to prevent injury to persons and property; to ensure that gas well drilling and production activities are compatible with adjacent land uses throughout the duration of such activities; and to assure that such activities conform to The Denton Plan. The regulations contained in this Subchapter are designed to protect the health, safety, and general welfare of the public and to assure that the orderly and practical development of mineral resources is compatible with the quiet enjoyment of affected surface estates. The regulations contained in this Subchapter are designed to implement the purposes set forth in this subsection and are supported by the following findings of fact: 1. Gas well drilling and production activities create externalities that potentially threaten the health, safety and general welfare of persons residing or working on property in proximity to such operations. 2. Gas well drilling and production activities, in the absence of local regulatory controls, may emit high noise levels, produce large volumes of dust, congest local streets, present fire hazards and produce other deleterious effects, all of which fall disproportionately on adjacent land uses, and which can result individually or cumulatively in injury to persons, destabilization of property values, and inhibit the quiet peace and enjoyment of surface uses of real property in the vicinity of such operations. 3. The City of Denton recognizes that the United States and the State of Texas regulate gas well drilling and production activities for the purpose of implementing broad air quality and water quality goals. The regulations in this Chapter are intended to supplement such standards in order to implement compatible local objectives that assure the health, safety and general welfare of the City's residents and businesses. 4. The proliferation of gas wells and gas well pad sites within the City of Denton creates conflicts between such developments and other existing and future surface uses of the property. In order to assure the compatibility of residential, commercial and industrial uses with gas well development, it is necessary for the City to regulate the location of gas well locations relative to other surface uses within the City and to consolidate sites for development of gas wells consistent with the rights of mineral owners to reasonably access subsurface resources. B. Authority. This Subchapter is adopted pursuant to authority vested under the constitution and laws of the United States, the State of Texas and the City of Denton. Each authorization identified in this Subchapter shall be construed as an exercise of the City's zoning powers, pursuant to the Denton City Charter, Texas Local Government Code Chapters 211 and 212 and the provisions of Subchapter 35.5 of the Denton Development Code (DDC). C. Applicability. The provisions of this Subchapter apply only within the corporate limits of the City of Denton, except as otherwise stated in section 35.16.19 of the DDC. ON 35.22.1. - Purpose, Authority and Applicability. A. Purpose. The drilling and production of gas and the development of gas well facilities within the corporate limits of the City necessitate promulgation of reasonable regulations to prevent devaluation of property; to protect watersheds; to prevent deleterious uses of groundwater resources that actually or potentially threaten the health of persons in proximity to drilling and production activities; t monitor noxious emissions of gases that potentially threaten the health of nearby residents and employees; to prevent injury to persons and property; to ensure that gas well drilling and production activities are compatible with adjacent land uses throughout the duration of such activities; and to assure that such activities conform to The Denton Plan. The regulations contained in this Subchapter are designed to protect the health, safety, and general welfare of the public and to assure that the orderly and practical development of mineral resources is compatible with the quiet enjoyment of affected surface estates. The regulations contained in this Subchapter are designed to implement the purposes set forth in this subsection and are supported by the following findings of fact: 1. Gas well drilling and production activities create externalities that potentially threaten the health, safety and general welfare of persons residing or working on property in proximity to such operations. 2. Gas well drilling and production activities, in the absence of local regulatory controls, may emit high noise levels, produce large volumes of dust, congest local streets, present fire hazards and produce other deleterious effects, all of which fall disproportionately on adjacent land uses, and which can result individually or cumulatively in injury to persons - destabilization of property values, and inhibit the quiet peace and enjoyment of surface uses of real property in the vicinity of such operations. The City of Denton recognizes that the United States and the State of Texas regulate gas well drilling and production activities for the purpose of implementing broad air quality and water quality goals. The regulations in this Chapter are intended to supplement such standards in order to implement compatible local objectives that assure the health, safety and general welfare of the City's residents and businesses. 4. The proliferation of gas wells and gas well pad sites within the City of Denton creates conflicts between such developments and other existing and future surface uses of the property. In order to assure the compatibility of residential, commercial and industrial uses with gas well development, it is necessary for the City to regulate the location of gas well locations relative to other surface uses within the City and to consolidate sites for development of gas wells consistent with the rights of mineral owners to reasonablv access subsurface resources. B. Authority. This Subchapter is adopted pursuant to authority vested under the constitution and laws of the United States, the State of Texas and the City of Denton. Each authorization identified in this Subchapter shall be construed as an exercise of the City's zoning powers, pursuant to the Denton City Charter, Texas Local Government Code Chapters 211 and 212 and the provisions of Subchapter 35.5 of the Denton Development Code (DDC). C. Applicability. The provisions of this Subchapter apply only within the corporate limits of the City of Denton, except as otherwise stated in section 35.16.19 of the DDC. Pj 35.22.2. - Definitions. For the purpose of this Chapter, certain words and terms shall be defined and interpreted as follows. Interpretations of meaning shall be made by the Director of Planning and Development based on the provisions of Section 35.1.4. Appeals of staff interpretations of this Chapter shall be heard as a Board of Adjustment proceeding in accordance with Subsection 35.3.6. Closed -loop mud system. A system that uses a combination of solids control equipment incorporated in a series of removable tanks that eliminates the use of a mud circulation pit or a reserve pit. Completion combustion device. Any ignition device, installed horizontally or vertically, used in exploration and production operations to combust otherwise vented emissions from completions. Completion Operations. The portion of the Drilling Activities that includes the work that is performed after Initial Drilling Activities and prior to Production Activities in order to optimize the production of a well, often by inserting equipment into the hole. Compressor station. A facility that compresses natural gas for delivery by pipeline through a transmission pipeline. Consolidated Site. A Drilling and Production Site designated for consolidation of gas well development either through approval of a Gas Well Combining District or a Consolidation Permit. Contaminant. Any substance capable of contaminating a non - related homogeneous material, fluid, gas or environment. Daytime. The hours between sunrise and sunset on any given day. Delineation well. A well drilled in order to determine the boundary of a field or producing reservoir. Drilling. Term used to typically describe the means by which the earth is bored to create a pathway to formations containing hydrocarbons to allow for their production to the surface. It can employ various types of mobilized drilling equipment to create a wellbore while incorporating drilling fluids to cool the bit, to condition the hole, to remove drilled cuttings and, most critically, to maintain an overbalanced pressure gradient against the formation that may contained inherently pressurized well fluids. Drilling Activities. Those activities commonly performed at a drilling and production site necessary or incidental to getting hydrocarbons to market; including and not limited to initial drilling, hydraulic fracturing, flow back, and completion operations, but not including production activities, a well redrill or any hydraulic refracturing. Drilling and Production Site. The area dedicated to all authorized gas well drilling and production activities and containing all structures, closed -loop systems, dehydrators, parking areas, security cameras, lighting, tanks, tank battery (or any other tank grouping area), drilling rigs, separators, lift compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production activities, as designated on the Gas Well Development Plat or Gas Well Development Site Plan, but excluding gathering and transmission lines and compressor stations. Drilling and Production Site includes the terms Gas Well Park, Gas Well Pad Site and Drilling and Production Area. Existing Drilling and Production Site or Existing Site. A gas well drilling and production site that was designated through approval of a gas well development site plan or a gas well development plat prior to , 20, and on which one or more gas well developments have commenced. Where the boundaries of such site have not been designated by an approved gas well development plat, the term defines the area incorporating all facilities devoted to authorized drilling activities or production activities. Exploration. Geologic or geophysical activities, including, but not limited to surveying and seismic exploration, related to the search for oil, gas, or other sub - surface hydrocarbons. Flowback. The process of allowing fluids to flow from a natural gas well following a treatment, either in preparation for a subsequent phase of treatment or in preparation for cleanup and returning the well to production. The flowback period begins when material introduced into the well during the treatment returns to the surface immediately following hydraulic fracturing or refracturing. The flowback period ends with either well shut in or when the well is producing continuously to the flow line or to a storage vessel for collection, whichever occurs first. Freshwater Well. A private water well used by a Protected Use. Gas. A naturally - occurring gaseous substance, including substances primarily composed of methane and other light, gaseous hydrocarbons. Gas Processing Plant. A facility, separate and distinct from a Drilling and Production Site, engaged in the extraction of natural gas liquids from field natural gas, or the fractionation of mixed natural gas liquids to natural gas products, or a combination of both. Gas Well. A hole or bore drilled to any horizon, formation, or strata for the purpose of producing natural gas, or liquid hydrocarbons. Gas Well Development. Any drilling activity or production activity. Gas Well Drilling and Production Activities. (A/K/A drilling and production activity(ies), drilling and production) As used in this Chapter, gas well drilling and production activities encompasses all three of the following: Initial Drilling Activities, Completion Operations and Production Activities. 0a Gas Well Permit. A two -stage written license granted by the City of Denton that authorizes drilling, completion and production activities, issued pursuant to rules and regulations of this Subchapter. A Gas Well Permit is required for each separate well and for each redrill of any gas well. Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to, public buildings and enclosed buildings used for commercial or industrial purposes. A habitable structure shall not include accessory buildings, barns, garages and sheds. Hazardous Materials Management Plan. The hazardous materials management plan and hazardous materials inventory statements required by the Fire Code. Hydraulic Fracturing. The process of directing pressurized fluids containing any combination of water, proppant, and any added chemicals to penetrate tight formations, such as shale or coal formations, that subsequently require high rate, extended flowback to expel fracture fluids and solids during completions. Hydraulic Refracturing. Conducting a subsequent hydraulic fracturing operation at a well that has previously undergone a hydraulic fracturing operation. Initial Drilling Activities. The portion of the Drilling Activities that includes the means by which a portion of the earth is originally bored in order to create a pathway to formations containing hydrocarbons to allow for their production to the surface. Lift Compressor. A mechanized device that compresses gas prior to its introduction into a well for use in lifting well liquids to the surface. Lightning Protection System. An integrated system designed to ground metal equipment on a rig, well pad or at a tank battery location for protection against electrical shock, fire or explosion due to lightning. Liner. In pit construction, a liner is an impervious material, either synthetic or natural, that is used to line the interior of a pit to prevent pit fluids from leaking or leaching into the environment. New Drilling and Production Site or New Site. A proposed drilling and production site that is other than an existing drilling and production site. Nighttime. The hours between sunset and sunrise on any given day. Oil and Gas Inspector or Inspector. An inspector designated by the City of Denton that is responsible for evaluating the impacts of exploration, development, and production of oil and /or gas wells. Responsibilities include environmentally sensitive areas review, erosion control inspection, monitoring, and evaluating compliance with federal, state, and local regulations. 3 Operator. The person(s) in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. Pit. A temporary or permanent containment for circulated fluids. A pit shall include: Completion/Workover Pit: Pit used for storage or disposal of spent completion fluids, workover fluids and drilling fluid, silt, debris, water, brine, oil scum, paraffin, or other materials which have been cleaned out of the wellbore of a well being completed or worked over. Drilling fluid disposal pit: Pit, other than a reserve pit, used for disposal of spent drilling fluid. Fresh makeup water pit: Pit used in conjunction with drilling rig for storage of fresh water used to make up drilling fluid or hydraulic fracturing. Mud circulation pit: Pit used in conjunction with drilling rig for storage of drilling fluid currently being used in drilling operations. Reserve pit: Pit used in conjunction with drilling rig for collecting spent drilling fluids; cuttings, sands, and silts; and wash water used for cleaning drill pipe and other equipment at the well site. Reserve pits are sometimes referred to as slush pits or mud pits. Saltwater disposal pit: Pit used for disposal of produced saltwater. Washout pit: Pit located at a truck yard, tank yard, or disposal facility for storage or disposal of oil and gas waste residue washed out of trucks, mobile tanks, or skid - mounted tanks. Water Condensate pit: Pit used in conjunction with a gas pipeline drip or gas compressor station for storage or disposal of fresh water condensed from natural gas. Plugging and Abandonment. Includes the plugging of the well, abandoned, orphaned or otherwise, in accordance with RRC Statewide Rule 3.14 and restoration of the Drilling and Production Site as required by this Subchapter. Production Activities (A/K/A Production). The phase that occurs after successful exploration, drilling and development involving operations including, but not limited to, gas wells, tanks, dehydrators, separators, mud pits, ponds, tank batteries or associated mechanical equipment, and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and regulated by the Pipeline Safety Act of 1994, 49 U.S.C. §§ 60101 60137. Protected Use. Any dwelling, church, public park, public library, hospital, pre- kindergarten, kindergarten or elementary, middle or high school, public pool, public transit center, senior center, public recreation center, hotel or motel. Railroad Commission (RRC). The Railroad Commission of Texas. e! Reduced emissions completion. A well completion following fracturing or refracturing where gas flowback that is otherwise vented is captured, cleaned, and routed to the flow line or collection system, re- injected into the well or another well, used as an on -site fuel source, or used for other useful purpose that a purchased fuel or raw material would serve, with no direct release to the atmosphere. Site - specific authorization means the prior approval by ordinance of City Council, of one or more specifically located and defined gas well site locations, subject to further site design, development, regulatory and permitting requirements, as set forth in this Code or as specified within the site approval ordinance (or both), as applicable. Redrill. Any work to an existing well bore or an existing surface hole location after initial drilling that requires a new permit from the Texas Railroad Commission. This definition includes, but is not limited to, recompletions, sidetrack wells, drilling into a new horizon or drilling multiple directionals from the same surface hole location or using the same vertical wellbore. Redrill does not include Workover Operations. Site Preparation. To ready a Drilling and Protection Site for Drilling Activities by staking the location, installing erosion and sediment control practices, site clearing and grading, initial rig moves, and product deliveries. Tank. A natural or man -made container, covered or uncovered, in which to store, contain or mix liquids or hydrocarbons used or produced in conjunction with the drilling, stimulation or production activities of an oil or gas well. Wildcat well. A well outside known fields or the first well drilled in an oil or gas field where no other oil and gas production exists. Workover Operation. Work performed on a well after its initial completion to secure production where there has been none, to restore production that has ceased, or to enhance or increase production within the zone originally completed or to repair the well. Workover Operations may include refracturing activities. 61 tt��- ttaeEi+�ta -si=t ls�-€3 a r� � l�ttE- i�ae -��41- rra�1- � +r- t�t+t3- l�r«�L- tte-ea rtaErol -a�f -i lae- farr't�r�t# i+�ra- f�ttiE4 -For the yurlose of this C hater. certain words and terms shall be defined and interyleted as follows. Intel retations of meaning shall be made by the Director of Planning and Development based on the rrovisions of Section 35.1.4. Appeals of staff interpretations of this Chapter shall be heard as a Board of Adjustment proceedin& m accordance with Subsection 35.3.6. ® -.. Formatted: Font: Times New Roman, 12 pt Closed -loop mud system. A system that uses a combination of solids control equipment *v Formatted: Indent: Lett: 0.08 ", Pattern: Clear incorporated in a series of ~ removable, tanks that eliminates the use of a mud circulatio (Backgrou nd 1) ,. a reserve. pit- Formatte d: Pattern: Clear (Background 1) Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt ,Completion combustion device. Any ignition device, installed horizontally or vertically, used- ;. { Formatted: Font: 12 pt in exploration and production operations to combust otherwise vented emissions from Formatted: Pattern: Clear (Background 1)� completions, ( Formatted: Font: Times New Roman, 12 pt • ~ ` , r € �k ,. b-aa� ~ r�rt;. T— x4x�tlat�t�� � 1� -erst - � .' 1- ftra� -re-. Completion Cipeu ations. dhe portion of the Drilling Activities that includes the work that is pert <rrmed after Initial I)rillin Activities and prior t<r Iroduction Activities in order to optimize the production <rl'a well, often Iry insertin 5 cclnipment into the hole. - (Formatted: Font: Times New Roman, 12 pt Formatted: Pattern: Clear (Background 1) Compressor station. A facility that compresses natural gas for delivery by pipeline through a transmission pipeline. Consolidated Site A drilling and production site desinated for consolidation of has well devclo mcnt either thrau�h appraval cif a Gas Well Cambinin� District or a c-Consolidation fPcrmit . substance capable of contaminating a non - related homo fluid, gas or environment. Formatted: Font: Times New Roman, 12 pt Formatted: Pattern: Clear (Background 1) Daytime. }� rt# tt .ttt tt l he hCrL1rS between 5t1nC1Se al]d 5tlnSet on an given day, [- Formatted: Font: Times New Roman, 12 pt JDelineation well. A well drilled in order to determine- the boundary of a field or producing (Formatted: Font: 12 pt reservoir, —( Formatted: Font: Times New Roman, 12 pt ------------------------------------------------------------------------------------- ------------------------------- Drilling. Term used to typically describe the means by which the earth is bored to create a pathway to formations containing hydrocarbons to allow for their production to the surface. It can employ various types of mobilized drilling equipment to create a wellbore while incorporating drilling fluids to cool the bit, to condition the hole, to remove drilled cuttings and, most critically, to maintain an overbalanced pressure gradient against the formation that may contained inherently pressurized well fluids. Drilling Activities. Those activities coanmonly perfarmcd at a dDrillin� and pProduction sSite nLCCSSary or incidental to �ir�g hydrocarbons to market; including and not limited to initial drilling, hydraulic fracturing, flow bath, and completion operations, but not including production ac tvitics, a well redrill or any hydranlic refractarin��. Drilling and Production Site The area dedicated to all authorlrLd. gas well drilling -�+— _ tr + r , ' xfft-pndproduction fff-&a;- a utivlti-e- s and c-o- nwin- i-n- -all - structures, closed- - - -- loop systems, dehydrators, parking areas, security cameras, lighting, tanks, tank battery (or any other tank grouping area), drilling rigs, separators, lift comprressors-a -._ s- 4e4-A . Vii - perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production activities, as designated on the Gas Well Development Plat or Gas Well Development Site excluding gathering and transmission lines and compressor stations. Drillino and Production Site includes the terms Gas Well Park Gas Well Pad Site and Drilling and Production Area #�� =ill -—t-I, � . � «Gcf- ferr�4t tf4trag -eat# tray- ::rri= e-fiwst 1�+taep- €*ra+de- htr- �r€*�tt�i�tE Formatted: Font: Times New Roman. 12 Formatted: Pattern: Clear (Background 1) Formatted: Font: Times New Roman, 12 pt ---------------------------------------------- Formatted. Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt ]Existing Drilling and Production Site or lExistin� Site. A gas well drilling and production site that was desi 5nated throe 5h approval <,P a gas well development site plan or a gas well Formatted: Footer, Tab stops: 0 ", Left 2 �/ 20 lam, and on which one or more gas well devel<apments have commenced. Where the boundaries of such site have not been desil5nated b an annroved gas well devel<rnment lat, the term defines the area incorporating all f {tcilities devoted to authorir.ed drilling activities or production activities. Xxploration. Geologic or geophysical- activities, including,- but not limited- to surveying ands .. -- { Formatted: Font: Times New Roman, 12 pt seismic exploration, related to the search for oil, gas, or other sub - surface hydrocarbons. [ Formatted: pattern: Clear (Background 1) Formatted: Font: Times New Roman, 12 pt .. -------- -------- --------- *- �a�z�- c�lrytltrtFt�t�- Ylowback. The process of allowing fluids to flow from a natural gas well following a treatment,- „ { Formatted: Font: Times New Roman, 12 pt either in preparation for a subsequent phase of treatment or in preparation for cleanup and Formatted: pattern: Clear (Background 1)� returning the well to production. The flowback period begins when material introduced into the well during the treatment returns to the surface immediately following hydraulic fracturing or refracturing. The flowback period ends with either well shut in or when the well is producing continuously to the flow line or to a storage vessel for collection, whichever occurs first. Freshwater Well. A private water well used by a Protected Use. of methane and other light, gaseous hydrocarbons. Gas Processing a, Plant. Apra + € fac lht cparate and distlnut from a Drilling and Production `site,, engaged in the extraction of natural gas liquids from field natural gas,- or the fractionation of mixed natural gas liquids to natural gas products, or a combination of both. natural us, or liquid hydrocarbons. Formatted: Font: Times New Roman, 12 pt, Not Bold ---------------------------------------------------------------------------------- - - - - -- Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt, Not Bold Formatted: Font: Times New Roman, 12 pt E - Formatted: Font: Times New R oman, 12 pt Gas Well: Develorzment. II Gas Well Drilling and Production Activities. (�A/K/A drilling and production activity(ies), drilling and production) As used in this Chapter, gas well drilling and production activities encompasses all three of the following: Drilling Activities, Completion Operations and Production Activities. Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt - - - - - -- - - - - -- -- - - - - -- ---- - - - - -- Formatted. Font: Times New Roman, 12 pt Formatted: Footer, Tab stops: 0 ", Left ------------------- ------------------------------- - - -------------------------- ------------------------------- ,Gas Well Permit. A two- stage: written license- granted by the City of Denton ' ' - l Formatted: Font: Times New Roman, 12 pt ea that authorizes drilling errt c<rmplc flan and production Formatted Font Times New Roman 12 pt iu at*a,., activities, issued pursuant to rules and regulations of this Subchapter. A Gas Well � Formatted: Font: rimes New Roman, 12 - pt Permit is required for each w -- separate well and for each redrill of any uas well. pt Formatted- Times New Roman, 12 pt - Habitable Structure. Structures suitable for human habitation or occupation for which a Certificate of mm mm mm mm.. (Occupancy or Final Inspection Certificate is required, including but not limited to Formatted: Font: Times New Roman, 12 pt public buildings; and enclosed buildings used for commercial or industrial purposes. A habitable structure shall not include accessory buildings, barns, garages and sheds. ,Hazardous Materials Management- Plan. The hazardous materials management plan and--"-,,- Formatted: Font: Times New Roman, 12 pt hazardous materials inventory statements required by the Fire Code. Formatted: pattern: clear (Background 1) Hydraulic Fracturing. The process of directing pressurized fluids containing any combination of water, proppant, and any added chemicals to penetrate tight formations, such as shale or coal formations, that subsequently require high rate, extended flowback to expel fracture fluids and solids during completions. Hydraulic Refracturing. Conducting a subsequent hydraulic fracturing operation at a well that l Formatted: Font: 12 pt has previously undergone a hydraulic fracturing operation, Formatted. Font. 12 pt, Font color. auto, Border.: (No border) Initial frilling Activities. The portion of the Drilling Activities that includes the means by which a portion of -the e"11111 is ori,5inally bored in order to create a pathway to 1 <rrmations containing hydrocarbons to allow for their production to the surface. a Formatted: Font: Times New Roman, 12 pt ' ------ -------------------------------------------------------------------------------- ---- - - -- - -- - - - -- �, Lift Compressor. A mechanized device that compresses gas prior to its introduction into a well Formatted: Pattern clear (Background 1 ) for use in liftin g well liquids to the surface. Lightning Protection System. An integrated system designed to ground metal equipment on a rig, well pad or at a tank battery location for protection against electrical shock, fire or explosion due to lightning. Formatted: Footer, Tab stops: 0 ", Left ------------------- ------------------------------- - - -------------------------- ------------------------------- -I°dew IOrillin and Production Site or I°dew Site. A proposed drilling and production site that is other than an existinu drilling and production site. The and on Oil and Gas Inspector or Inspector. An inspector designated by the City of Denton that is responsible for evaluating the impacts of exploration, development, and production of oil and /or gas wells. Responsibilities include environmentally sensitive areas review, erosion control inspection, monitoring, and evaluating compliance with federal, state, and local regulations. Operator. The person(s) in charge and in control of drilling, maintaining, operating, pumping, or controlling any well or pipeline including without limitation, a unit operator. #"- a'siezrs- nit€ alit— A- perl�rta- f�ttrai- 4+�rt- ��a+alr- Strad- edu�rEe'. aY- t?�ari1- �rrac�- ��t�- +taEk�tt�- ��ala�,7 -n _ ',G:;a A temnorary or nermanent containment for circulated fluids. A nit shall include: Completion/Workover p�Pit;: Pit used for storage or disposal of spent completion fluids, workover fluids and drilling fluid, silt, debris, water, brine, oil scum, paraffin, or other materials which have been cleaned out of the wellbore of a well being completed or worked over. Drilling fluid disposal pit: Pit, other than a reserve pit, used for disposal of spent drilling Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Pattern: Clear (Backaround 1) Formatted: Indent: Left: 0 ", Pattern: Clear - (Background 1) - -------------------------------------------------------------------------------- ------------------------------- Formatted: Font: Times New Roman, 12 pt Formatted: Font: 12 pt Formatted: Font: Times New Roman, 12 pt Fresh makeup water pit: Pit used in conjunction with drilling rig for storage of fresh water used . - -- [ Formatted: Font: -Times New Roman, 1z pt - - -- - - -- - - -- - - -- - - -- to make up drilling fluid or hydraulic fracturm� — Formatted Font Times New Roman 12 pt Mud circulation pit: Tit used in conjunction with drilling- rig for storage of drilling fluid Formatted: Font: 12 pt currently being used in drilling operations. Reserve pit: Pit used in conjunction with drilling rig for collecting spent drilling fluids; cuttings, sands, and silts; and wash water used for cleaning drill pipe and other equipment at the well site. Reserve pits are sometimes referred to as slush pits or mud pits. Saltwater disposal pit: Pit used for disposal of produced saltwater. Formatted: Footer, Tab stops: 0 ", Left ------------------- ------------------------------- - - --------------------------------------------------------- 5 Washout pit: Pit- located at a truck yard,- tank yard, or disposal facility- for storage or disposal- of Formatted: Font: 12 pt oil and gas waste residue washed out of trucks, mobile tanks, or skid - mounted tanks. Water Condensate pit: Pit used in conjunction with a gas pipeline drip or gas compressor station for storage or disposal of fresh water condensed from natural gas. , Formatted: Font: Times New Roman, 12 pt ° [Formatted: Pattern: Clear (Background 1) Plugging and Abandonment. - 'r e Formatted: Font: Times New Roman, 12 pt of the well, abandoned, orphaned or otherwise, in accordance with RRC Statewide Rule 3.14 and _ - Formatted: Font: Times New Roman, 12 pt restoration of the Drilling and Production Site as required by this Subchapter. Production A {Formatted: Font: Times New Roman, 12 pt drilling and development involving= or�erations ineludin�, but not linnited to, gas wells, tanks, dehydrators, separators, rnud pits, ponds, tank batteries or associated mechanical equipment. and during which hydrocarbons are extracted from the gas field, excluding those operations and facilities as defined and reGulated by the Pipeline Safety Act of 1994. �.C. bb 60101 — 60137. Protected Use. Any dwelling, church, public park, public library, hospital, pre - kindergarten, kindergarten or elementary, middle or high school, public pool, public transit center, senior center, public recreation center, hotel or motel. - --- l Formatted: Pattern: Clear (Background 1) Railroad Commission (RRC). The Railroad Commission of Texas. Reduced emissions completion. A well completion following fracturing or refracturing where Formatted: Font: 12 pt gas flowback that is otherwise vented is captured, cleaned, and routed to the flow line or collection system, re- injected into the well or another well, used as an on -site fuel source, or used for other useful purpose that a purchased fuel or raw material would serve, with no direct release to the atmosphere. Site- specific authorization means the prior approval by ordinance of City Council, of one or- , , { Formatted: Font: Times New Roman, 12 pt more specifically located and defined gas well site locations, subject to further site design, Formatted: Pattern: Clear (Background 1)� development, regulatory and permitting requirements, as set forth in this Code or as specified within the site approval ordinance (or both), as applicable. Formatted: Font: Times New Roman, 12 pt Redrill. Any work to an existing well bore ar an existing surface hole location after initial drilling that requires a new pern�ft from the d'exas Railroad Commission. This definition includes, but is not limited t<a, recomnletions, sidetrack wells, drillin(� into a new horizon or drillin(� multiple drectionals fron7 the same sulf {lce hole location or using the same vertical wellbore. Redrill does not include Workover C)nerations. Formatted: Footer, Tab stops: 0 ", Left ------------------- ------------------------------- - - -------------------------- ------------------------------- `site preparation �a ready a I7rillin� and F'ratectian Site far I7rillin� /lctivities by stal�in___the 1<rcatian installing erasian and sediment central practices, site clearing and grading, initial rig moves, and product. deliveries. Tank. A natural or man -made container, covered or uncovered in which to store contain or mix ------------------------------------------------------- liquids or hydrocarbons used or produced in conjunction with the drilling, stimulation or production t sactivities, of an oil or gas well. -+E ti�7Hk3rit� $£tFf33�3eL#tiH$Hpk3NF)FFiit Formatted: Font: Times New Roman, 12 pt, Bold Formatted: Pattern: Clear (Background 1) Formatted: Font: Times New Roman, 12 pt --------------------------- Formatted: Font: Times New Roman, 12 pt Formatted: Font: Times New Roman, 12 pt Formatted: Pattern: Clear (Background 1) Formatted: Pattern: Clear (Background 1) Formatted: Font: Times New Roman, 12 pt, Wildcat well. A well outside known fields or the first well drilled in an oil or gas field where no* • � Font color: Black, Border:: (No border) other oil and gas production exists. Formatted: Font: 12 pt Formatted: Pattern: Clear (Background 1) Workover Operation. Work performed on a well after its initial completion to secure �� Formatted: Font: Times New Roman, 12 pt production where there has been none, to restore production that has ceased, or to enhance or increase production within the zone originally completed or to repair the well. Workover neratlanS may include Tefractt7:ring actlyltlC;S - - -- ,Formatted: Font: Times New Roman, 12 pt - Formatted: Font: Times New Roman, 12 pt, Font color: Black, Border:: (No border) Formatted: Justified, Pattern: Clear (Background 1) Formatted: Footer, Tab stops: 0 ", Left ------------------- ------------------------------- - - -------------------------- ------------------------------- 35.22.3. - Required Authorization for Gas Well Drilling and Production in City Limits. A. Zoning District Classifications for Gas Well Drilling and Production. 1. The drilling and production of gas within the corporate limits of the City on existing Drilling and Production Sites shall be permitted by right within the Rural Residential (RD -5) or within any unzoned area of the City that is subject to the use regulations of the RD -5 District, Rural Commercial (RC), Neighborhood Residential 1 (NR -1), Neighborhood Residential 2 (NR -2), Regional Center Commercial Neighborhood (RCC -N), Regional Center Commercial Downtown (RCC -D), Employment Center Commercial (EC -C), Employment Center Industrial (EC -I), Industrial Center Employment (IC -E) and Industrial Center General (IC -G) Zoning Districts, except as provided in subsection B, and subject to obtaining a Consolidation Permit and compliance with the requirements of this Subchapter. 2. The drilling and production of gas within the corporate limits of the City on existing Drilling and Production Sites in all other zoning districts shall be permitted only by Specific Use Permit pursuant to subchapter 35.6, or through approval of a Detailed Plan in a Planned Development (PD) district, or site - specific authorization in Master Planned Community (MPC) district. Notwithstanding the provisions of Subsection A, approval of a Specific Use Permit also shall be required for gas well drilling and production on any land located within the 100 -year flood fringe or within one thousand, two hundred (1,200) feet of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. Such drilling and production activities shall be subject to obtaining a Consolidation Permit and compliance with the requirements of this Subchapter. 3. Drilling and production of gas within the corporate limits of the City on new drilling and production sites shall be permitted through approval of a Gas Well Combining District pursuant to the requirements of Section 35.22.7.16. B. No gas well drilling or production activities may commence within the City limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Gas Well Combining District to establish any new Drilling and Production Site pursuant to Section 35.22.7.16, or approval of a Consolidation Permit to authorize a new gas well on an existing Drilling and Production Site pursuant to Section 35.22.4. 2. Approval of a Preliminary Gas Well Development Site Plan pursuant to Section 35.22.6.A. Upon receipt of an approved Preliminary Final Gas Well Development Site Plan, the operator may commence construction of a Drilling and Production Site. No disturbance of the land is allowed until a Preliminary Final Gas Well Development Site Plan is obtained. An application for a Site Preparation Permit must accompany a request for a Gas Well Combining District or an application for a Consolidation Permit. 3. Upon completion of Drilling and Production Site construction, and prior to any additional activity on the site, the operator must obtain a Final Gas Well Development Site Plan pursuant to Section 35.22.6.B. 4. Approval of a Gas Well Permit authorizing Initial Drilling Activities from the Denton Gas Well Division pursuant to the application requirements and standards of Section 35.22.7. 5. Approval of a Temporary Above - Ground Storage Tank Permit from the Denton Fire Department. 6. Approval of Gas Well Operational Permit from the Denton Fire Department. 7. When all approvals contained in Sections 1 - 6 above have been obtained, applicant may commence Initial Drilling Activities. 8. Approval of a Flammable and Combustible Liquids Construction Permit from the Denton Fire Department. 9. Approval of a Flammable and Combustible Liquids Operational Permit from the Denton Fire Department. 10. Approval of a Gas Well Permit authorizing Completion Operations and Production Activities from the Denton Gas Well Division pursuant to the application requirements and standards of Section 35.22.7. 11. When all approvals contained in Sections 1 - 10 above have been obtained, applicant may commence Completion Operations and Production Activities. 12. Amendments to the authorizations set forth in this Section shall be as required in the provisions governing the original application. 13. New drilling or production activities on an existing Drilling and Production Site that is subject to an approved Watershed Permit, or on sites which required a Watershed Permit under prior regulations, but for which site no Watershed Permit was issued, are subject to the requirements of Section 35.22.5.C. The applications for any authorization for gas well drilling and production listed in Subsection must be submitted and approved in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all 2 required prior applications have been approved, and no completeness determination shall be made until such prior applications have been approved. D. Applications for gas well drilling and production shall expire under the following circumstances: 1. A Specific Use Permit, or site - specific authorization in a PD district or MPC district, which was approved under prior gas well regulations expires according to its terms; 2. A Watershed Protection Permit, if applicable, expires with the expiration of a Final Gas Well Development Site Plan. 3. A Consolidation Permit expires unless a complete application for a Final Gas Well Development Site Plan has been filed within two (2) years of the approval of the Consolidation Permit. 4. A Preliminary Gas Well Development Site Plan expires either with the expiration of a Consolidation Permit, or in other circumstances, unless a complete application for a Final Gas Well Site Development Plan has been filed within one (1) year of the date of the approval of the Preliminary Gas Well Development Site Plan. 5. A Final Gas Well Development Site Plan expires unless a complete application for a Gas Well Permit has been filed within one (1) years of the date of approval of the Final Gas Well Site Plan. 6. A Gas Well Permit expires if the particular stage of authorized activity (i.e, Drilling Activities or Completion Operations and Production Activities) has not commenced within six (6) months of the date of approval of the Gas Well Permit. 7. The expiration of any subsequent application results in the expiration of all prior approved applications for the same activity. E. Following expiration of an approved application for gas well drilling and production, a new application must be submitted. F. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City Code or by any other government agency. G. Legal Non - Conformity; Exceptions. 1. Non - conformities. The provisions of Subchapter 11 are applicable to gas well drilling and production activities, except as provided hereinafter. a. For purposes of Subchapter 11, the drilling of a new gas well and associated production activities do not constitute an existing lawful use. 3 b. Every Operator of a Drilling and Production Site that has been annexed into the City shall register the Drilling and Production Site within 30 days of the effective date of the annexation. c. The adoption of zoning district regulations for a Gas Well Combining District, the creation or amendment of a Combining District, or amendment of the permitted use tables and limitations in Subchapter 35 -5 to provide for gas well drilling and production activities shall not affect the legal status of drilling and production activities existing on the effective date of this amendatory ordinance. d. The adoption of regulations for designation of consolidated drilling and production sites, or the application of such regulations to existing drilling and production sites shall not affect the legal status of drilling and production activities existing on the effective date of this amendatory ordinance. e. The adoption of regulations requiring setbacks from protected uses, or the application of such regulations to existing Drilling and Production Sites shall not affect the legal status of drilling and production activities existing on the effective date of this amendatory ordinance. 2. The standards or procedures implemented by this amendatory ordinance (Ordinance No. ) shall not affect the processing and approval or disapproval of an application for a gas well permit that was pending for decision on the effective date of this amendatory ordinance, or any subsequent permit applications for the same gas well, or for a gas well for which a gas well permit was approved prior to the effective date of this amendatory ordinance, except to the extent necessary to give effect to this subsection F. For purposes of this subsection 2, an amended gas well site plan application is not a subsequent permit application. 3. Authorizations or applications excepted under subsection 2 are subject to all gas well drilling and production standards in effect immediately prior to the effective date of the amendatory ordinance (Ordinance No. ). 4. To the extent that any exception provided under subsection 2 is dependent on an application pending on the effective date of an amendatory ordinance, such application must have been approved subsequently in order for the exception to apply. 9 II)m 11- 3.11-- - - - - -- Formatted: R- -i -g h-t- -------------------------------- — — — — ---- 11 ------------------------- ------- -------------------------------------------------------------------------------------------------------------------- 35.22.4-3. - Required Authorization for Gas Well Drilling and Production in City Limits. Formatted: Indent: Left: 0" Formatted: Font: Bold, Font color: Auto Production. 1 the drilling and production of gas within the corporate limits of the City on existing dDrillin and pProduction sSites shall be permitted by gri ht within he Rural Residential (PD -5) or within env unzoned area of the Ci that is subect to the Neighborhood R Regional Center C Commercial Downtown I Industrial Center (several �-oLzonrngy Districts except as provided �m subsection �Band �sLibcct, to retuirements of this Subchapter. 2. the drilling and production of gas within the corporate limits of the City on existing dDrillin and pPr<'rductian sSites in all ether zoning districts shall be permitted only by `�necitic �7se Permit. pursuant to subchapter 35.x, or throu�517 approval of a Detailed Plan in a Planned Development ID district or site - specilic authorization in Master Planned Community (NII'C) Notwithstandin(5 the rovisions of Subsection A, approval <,l' a Specific �7se Permit also shall be reduired for gas well drilling and production on any land located within the 100 -year flood fringe ar within ape thousand, twa hundred (1,200) feet <,P the flood pool elevation <,P Lake Ray Roberts or Lake Lewisville. Such—drillin—and production _activiti�essIyrllbc subject _toobtauun,—�a L2 eConsolidation pPermit and compliance with the requirements <,Pthis Subchapter. 3. Drillings drillin,—and production sites shall be Combining District pursuant to the reduirements of Section 35.22.7.16. L3. No gas well drilling or production activities may commence within the City limits until the following authorizations have been obtained, in the following sequence: [Formatted: Indent: Hanging: - 0.25" I 1. Approval of a 4F,c, : c; Q rsl r„ —,is Well Combining District to establish any 4sit �-s 'Production -�sSitc pursuant to Section 35.22.7.16, or approval of a Consolidation Permit to authorize a new gas well on an existing and P�roduction �-sSite purswin�tto Section-A-g-,_35.22.4. Approval of a 7 Prelinminary- Gas Well Development Site Plan t nu want; to Section 35.22.6.A. Upon receipt of an approved Prehminary i as WLII Development well 4Drilling and c r Produc tlon sS1tL Nu dl5turbanc L of the land is allowed until a Prehminary iras Well Development Sitc flan 1s obtained. An application for a Site Preparation Permit must accompany quest for a Gas Well Combining District or an application for a Consolidation Permit. f1fNi1 additional activity on the site, the <rperator must obtain a Final Gas Well Develo nit Site Plan pursuant to Section 35.22.013 4- Approval of a Gas Well of Section- 35.22.7. Formatted: Font color: Auto Formatted: Font color: Auto - -- - - - - -- -- - - - - -- -- - - - - -- ----------------- - - - - -- Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font: Times New Roman, 12 pt, Font color: Auto Formatted: List Paragraph, Tab stops: Not at 0.75" Formatted: Font color: Auto )rizing Initial Drilling Activities _ r , from -� Formatted: List Paragraph, Indent: Left: 0.5 ", to the application re q uirements and standards Hanging: 0.25" Formatted: Indent: Left: 0.5 ", Hanging: 0.25 ", No bullets or numbering, Tab stops: Not a, at 0.5" + 0.75" 1. ii+rr5. Approval <,l' a d'en7porary Above - Ground Stora(e d'anlc Permit from the Denton Fire Department. C. Approval <,l'Gas Well Operational Permit from. the Denton Fire Department. 7. When all approvals contained in Sections 1 - �6 above have been obtained, a licant may cammence Initial Drilling Activities. �. Approval of a F'larnmable and Combustible Liquids Construction Permit from the Denton Fire Department. �). Approval <,l' a Flammable and Combustible I,icuii ds Operational Permit from the Denton Fire Department. 14. Approval of a Gas Well Permit authorizinL Completion Operations' and Froduction Activities from the Denton Gas Well Division pursuant to the application requirements and standards of Section Ir,X)7 114. When all approvals contained in Sections 1 - 10 above have been obtained, applicant may commencL Completion Operations and Production Activities. Formatted: Font color: Auto -- --- - - - - -- --- - - - - -- --- - - - - -- --- - - - - -- --- - - - - -- Formatted. Font color: Auto Formatted: Indent: Hanging: 0.25 ", Tab stops: Not at 0.75" Formatted: Left, Tab stops: 0 ", Left 2 35.22.3 -Required Authorization for Gas Well Drilling and Production (AL Redline 12 -8 -1414) m� 12. Amendments to the authorizations set forth in this Section shall be as required in the provisions (�overnin(,� the ori(,�inal application. 13. New drllhn� aT Taduetlan aet1y1t1eS an an eXlstln , dDrlllm and Production BSite. Formatted: Indent: Left: 0.5" that is sLiVect to an approved Watershed Permit, or on sites which required a Watershed Permit under prier re�ulatians, but far which site na Watershed Permit was issued, are sabred to the requirements of Section 35.22.S.C. 'f'he applications for any authorization for gas well drilling and production listed in Subsection A ff+a�,Lnust be submitted r lip l- i r- Nt tk approved in the numerical order listed. No subsequent application shall be determined to be complete and hereby is deemed to be incomplete until all required prior applications have been approved, and no completeness determination shall be made until such prior applications have been approved. reaeD_�____Agplications for gas well drilling and production shall expire under the following circumstances: -- - Formatted: Indent: Hanging: 0.25 ", Tab 1. A Specific Use Permit, or site - specific authorization in a PD district or MPC district, stops: Not at 0.75" which was approved under prior pas well regulations expires according to its terms; 2. A Watershed Protection Permit, if applicable, expires with the expiration of a Final Gas Well Development Site Plan. Formatted: Indent: Left: 0.5 ", Hanging: 3. rel1 -A eConsolidation pPermit expires unless a 1 0.25" J complete application for a Final Gas Well Development Site Plan has been t11ed within two (2) years of the approval g,f the Consolidation Permit. 4. A Preliminary F4+kt —Gas Well Development Slte Plan expires either with the" � Formatted: Pattern: Clear (Background 1) eiration of a Consolidation Permit, or in other circumstances, unless a cam P lete application fora Final Gas Well Site Development Plan has been filed within one (1) yew ear of the date of the approval of the siitf> frht Preliminary Gas Well Develgpment Site flan. 4 5. A Final Gas Well Develgpment Site flan expires unless a con? lete application f <rr a Gas Well Permit has been filed within one (1) year of the date of approval of the Final Gas Well Site Plan. 6. A Gas Well Permit expires if the particular stage of authorized activity�� Formatted: Pattern: clear 4illit b aetiv ties (i.e., Drilling Activities or Completion Operations and Production Activities ) has-,ze not commenced within six (6) months of the date of approval of the Gas Well Permit. Formatted: Normal, Indent: Left: 0.5 ", -2 7_. The expiration of any subsequent application results in the expiration of all prior4� Hanging: 0.25 ", No bullets of numbering, approved applications for the same activity. Pattern: clear, Tab stops: Not at 0.5" Formatted. Left, Tab stops: 0 ", Left 3 35.22.3 -Required Authorization for Gas Well Drilling and Production (AL Redline 12 -8 -1414) m� l a — Formatted: Normal, Indent: Left: 0.25 ", --_---Following expiration of an approved application for gas well drilling and Hanging: 0.25 ", No bullets or numbering, Tab stops: Not at 0,5" production, new application must be submitted �-� e� * ¢ ^" T' EF. The authorizations required by this Subchapter are in addition to, and not in lieu of, any permits that may be required by any other provision of the Denton City Code or by any other government agency. _120. Legal Non - Conformity; Exceptions. Non - conformities. The provisions of Subchapter 11 are applicable to gas well drilling and production activities — except as provided hereinafter. a. For purposes of Subchapter 11, the drilling of a new gas well and associated production activities do not constitute an existing lawful use. 4- b. Every Operator of a Drilling and Production Site that has been annexed* Formatted: Normal, Indent: Left: 0.75', into the City shall register the Drilling and Production Site within 30 days of the Hanging: 0.25", No bullets or numbering, Tab effective date of the annexation. stops: Not at 0.5" + 0.75" 2 P—rrAt C. Me adoption of zoning district regulations for a Gas Well Combining District, the ii+rrp °° T „i rz�.=� � n�.uz�..�. � creation or ,. a*- amendment an 4- 24of a Combinin-) District, or "''-5 -+ tnez= -r i iE ab t e it- immendment of the permitted use tables and limit tations in Subchapter 35-5 to provide for gas well drilling and production, itea r pie e altar activities shall not affect the le Sal status <rf drillin 5 and Production activities existing5 on the effective date <,f' this amendatory ordinance. d. The adoptian crf re�ulatians f<rr desienatian crf cansolidated drilling and production sites, or the application of such regulations to existui (Y drilling and production sites shall not affect the legal status of drilling and production activities existing5 on the effective date <rfthis amendatory ordinance. e. The adoption of re(�ulations recinirin(5 setbacks from protected uses, or the application of such regulations to existing dE)nllin and PProduction aSites shall not affect the legal st <ftns <,P drillings a r?d production activities existing on the effective date of this amendatory ordinance. 2. The standards or procedures effected by this amendatory ordinance (Ordinance No. shall not affect the processin(� and approval or disapproval <,P an application f <rr a ras well permit that was pendin(� fur decision on the effective date of s�this amendatory ordinance, or any subset tri ent permit aFsplications f <rr the same (5as well, or for a ,5as well for which a (5as well permit was ap roved prior to the effective date of thise amendatory ordinance, except to the extent necessary to give effect to this subsection ses of this subsection Formatted: Left, Tab stops: 0 ", Left 35.22.3 -Required Authorization for Gas Well Drilling and Production (AL Redline 12 -8 -1414) 3. Authorizations or applications excepted under4kis, subsection 2 are subject to all gas well drilling and production standards in effect immediately prior to the effective date of the amendatory ordinance (Ordinance No. ). Ord t w++-44+e r 45. 4. To the extent that any exception provided under subsection 2 is dependent on an application pending on the effective date of an amendatory ordinance, such application must have been approved subsequently in order for the exception to apply. Formatted: Left, Tab stops: 0 ", Left 35.22.3 -Required Authorization for Gas Well Drilling and Production (AL Redline 12 -8 -1414) TI �- Formatted: Left, Tab stops: 0 ", Left 35.22.3 -Required Authorization for Gas Well Drilling and Production (AL Redline 12 -8 -1414) 35.22.4. — Consolidation Permits A. Purpose It is the intent of this section to establish a consolidated gas well site that allows reasonable exploitation of mineral resources through gas well development while minimizing to the greatest extent practicable conflicts between gas well developments and existing and future residential, commercial and industrial developments and, in particular, conflicts that arise between gas well developments and protected uses. Through approval of a Consolidation Permit, existing and future gas well development may be authorized on the best situated existing drilling and production site, while future gas well development may be restricted on other existing drilling and production sites. B. Applicability 1. Consolidation Permit. Except as provided in subsection (2), no watershed protection permit, original or amended gas well development site plan or gas well permit application may be approved for an existing drilling and production site which has not been authorized through creation or amendment of a Gas Well Combining District, unless the applicant has first obtained a gas well consolidation permit designating a consolidated drilling and production site. 2. Exceptions. A gas well consolidation permit is not required if, on the effective date of this Section, one of the following circumstances exists: a. An unexpired Gas Well Permit already has been issued for a gas well to be located on an existing drilling and production site; or b. A complete application for a Gas Well Permit has been filed for a proposed new well on an existing Drilling and Production Site and is pending for decision. If the permit application is denied, a subsequent application shall undergo consolidation review; or C. No Gas Well Permit is required for the proposed drilling or production activity, unless the Operator desires to perform re- drilling or re- completion activities so as to require compliance with this Chapter; or d. The existing Drilling and Production Site is located within an approved Master Planned Community (MPC) District, Planned Development (PD) District or is subject to a Specific Use Permit, which designates drilling and production sites and establishes rules for consolidation of gas wells on such sites consistent with the intent of this section. All separation standards in Section 35.22.8.A shall apply to any well that qualifies for an exception under this subsection. C. Application Requirements Pre - application Conference. The applicant shall schedule a conference with the Oil and Gas Inspector before filing an application for a Consolidation Permit in order to discuss alternative locations for a consolidated gas well site and available options. 2. Application Contents. The mineral lessee or operator shall be the applicant. The applicant shall designate an existing Drilling and Production Site as a consolidated well site, providing the following information: a. A property description of all lands for which applicant holds or controls the mineral lease within one mile of proposed gas well location, including areas within the City's extraterritorial jurisdiction; b. A metes and bounds description of the proposed consolidated site; C. Location of all existing, approved Drilling and Production Sites including consolidated sites, owned or under lease by the applicant within one mile of the proposed consolidated site, including areas within the City's extraterritorial jurisdiction; d. All existing and authorized wells owned, leased or operated by the applicant within one mile of the proposed consolidated site; e. The distance of the proposed Drilling and Production Site and each existing or newly planned Drilling and Production Sites described in subsections (b) through (d) to existing or approved Protected Uses. £ Separation distances drawn and labeled on the plan from each proposed well to the nearest internal boundary lines of the proposed consolidated site and separation distances from drawn between each existing or proposed well; g. A Preliminary Gas Well Development Site Plan for the proposed consolidated site, prepared in accordance with Section 35.22.6.A; h. A detailed site plan that clearly depicts the proposed consolidated site and surrounding properties that includes zoning district labels for the site and surrounding properties; notes indicating whether a Gas Well Development Site Plan, Gas Well Development Plat, Consolidated Site or an SUP was previously approved for the subject site; and dimensions of any required buffers per DDC Section 35.13.8. The Plan shall include distance measurements to Protected Uses within 1,200 feet of the site, identify Environmentally Sensitive Areas ( "ESAs ") and label any FEMA 100 -year floodplain and floodway. Flood plain information must be shown for all areas within one mile of proposed consolidated site. D. Processing of Application L Filing and Completeness Review. The application for a consolidation permit shall be filed with the Department. The application shall be reviewed for completeness by the Oil and Gas Inspector in accordance with the procedures of Section 35.16.8. 2. DRC Review. If the application is determined to be complete, it shall be sent to the DRC for review, which must be completed within 10 days of the filing of a complete application. 3. Applicant's Request for Limitation on Contiguous Leased Area. If an applicant contends that one or more areas within the contiguous area subject to mineral leases held by or under the control of the applicant should not be considered in designating a consolidated site, it shall identity such areas and present its reasons with the application for a consolidation permit. The Oil and Gas Inspector shall notify the applicant of its rights to request a special exception from the Board of Adjustment pursuant to Section 35.22.14. If an applicant chooses to appeal the matter to the Board, all further review of the Consolidation Permit application shall be suspended pending the Board's decision on the appeal. E. Criteria and Decision 1. Designation of Contiguous Leased Area. From the information submitted by the applicant, or as determined by the Board pursuant to section 35.22.3.D, the Oil and Gas Inspector shall designate the boundaries of the area subject to contiguous mineral leases owned by or under the applicant's control within one -half mile of the proposed gas well location and which constitute the area within which the request for a consolidated site will be evaluated. 2. Criteria. In evaluating an application for a Consolidation Permit, the Oil and Gas Inspector shall apply the following criteria: a. An existing Drilling and Production Site may not be designated as a consolidated gas well site if- (1) The site is located within a flood plain or other ESA; (2) The boundaries of the site are 500 feet or less from a protected use; (3) The site is located within 2,640 feet of an approved consolidated site under the control of the same operator; or (4) There is another Drilling and Production Site within the contiguous leased area that is a greater distance from protected uses; 3 b. The proposed site must be able to accommodate the number of additional wells permitted for the area subject to the mineral lease(s). The number of wells authorized for a consolidated site shall be computed at the ratio of one additional well per 20 acres subject to the lease(s), up to 32 gas wells per square mile of leased area. The number of gas wells allowed shall be reduced by the number of gas wells authorized on other existing drilling and production within the leased area, but an additional well shall be authorized for every plugged and abandoned well on another drilling and production site within the contiguous leased area. The maximum area for a consolidated site shall not exceed five acres unless the consolidated site accommodates more than one operator. The maximum area can be increased one (1) acre for each additional operator that locates wells on the consolidated site. C. The gas well administrator may not approve a consolidated site that is less than the following minimum separation distance from a protected use, relative to the size of the contiguous leased area to be restricted, unless the Board of Adjustment authorizes a lesser separation distance: Minimum Separation Distance 1000 feet 800 feet Contiguous Leased Acreage 1 -160 acres 161 -640 acres d. The site must be served by a road network that has adequate capacity to serve all proposed gas well development proposed for the site. e. In comparing the proposed site with other existing Drilling and Production Sites that meet the criteria for a consolidated gas well site, the following shall be taken into consideration: (1) Land within the mineral leasehold that is zoned for industrial purposes shall be prioritized over all other locations for the gas well consolidation permit. (2) In considering relative separation distances, residential uses shall be given preference over other Protected Uses 3. Decision. The gas well administrator shall approve or deny the permit within 5 days of receiving the report of the DRC and shall notify the applicant in writing of his decision. If the permit application is denied, the administrator shall state the reasons for denial and may state whether an alternative Drilling and Production Site within the area subject to the mineral lease(s) would qualify for designation H as a consolidated gas well site. If the permit application is approved, the Oil and Gas Inspector shall act upon the preliminary Final Gas Well Development Site Plan submitted with the application in accordance with the procedures in Section 35.22.6.B. 4. Permit Provisions. The consolidation permit shall specify the following: a. The maximum number of gas wells authorized for the consolidated site; b. Identification of the approved and recorded development plat that (i) identifies the consolidated site, (ii) the boundaries of the area within which no future drilling or production activities shall take place, and (iii) identification of the other drilling and production sites within such restricted area; and C. A statement that no new wells shall be established on other Drilling and Production Sites shown on the development plat. 5. Conditions. As a condition of granting the consolidation permit, the applicant shall: a. file a development plat for the designated contiguous leased area that: (1) vacates any existing development plats designating Drilling and Production Sites; (2) designates the consolidated site by metes and bounds description and incorporates the terms of the consolidation permit; (3) limits drilling and production activities on all other Drilling and Production Sites to existing well(s) or wells authorized under an exception to the requirements for a Consolidation Permit pursuant to subsection 35.22.4.B.2; and (4) states that no other Drilling and Production Sites may be established within the boundaries of the plat. b. The applicant shall record the development plat within 30 calendar days following approval by the Oil and Gas Inspector. C. Provide roadway improvements needed to offset the impacts of traffic from the consolidated gas well site. 6. Appeal. Appeal of the gas well administrator's denial of the consolidation permit application shall be to the Board of Adjustment pursuant to Section 35.22.14.A. 5 F. Effect of Approval. The approval of a Consolidated Permit designating a consolidated site shall have the following effects: a. All Gas Well Permit applications submitted thereafter for the consolidated site shall not be subject to the separation standards in Section 35.22.5.A.1. b. Gas well drilling and production activities on all other Drilling and Production Sites within the area subject to the development plat shall be limited to existing activities or those authorized by an exception pursuant to subsection 35.22.4.B.2. C. Surface developments will be subject to the minimum reverse setbacks from the consolidated site and from all other Drilling and Production Sites included within the area subject to the Consolidation Permit in accordance with Section 35.22.8.A.2. G. Option. An applicant for a Gas Well Permit for an existing Drilling and Production Site, in lieu of submitting the application for a Consolidation Permit as required by this Section, and following consultation with the Oil and Gas Inspector, may apply for a Gas Well Combining District pursuant to Section 35.7.16 of the Denton Development Code. C, Section 35.22.5. Watershed Permits for Gas Well Developments A. Applicability. I. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. 2. A Watershed Protection Permit application may be submitted simultaneously with an application for a Gas Well Development Site Plan or Gas Well Development Plat. B. Application Requirements and Processing. A Watershed Protection Permit shall be processed in accordance with the following: I. An application for a Watershed Protection Permit shall contain the following information and such information as may be required by the Development Review Committee and the Environmental Services Department, which is reasonably necessary to review and determine whether the proposed development and required facilities meet the requirements of this Subchapter and as required by the Application Criteria Manual. In addition the information shall include the following: a. A Tree Inventory Plan shall show the location of ESAs on any proposed Drilling and Production Site. b. Any request to remove tree(s) shall be accompanied by a letter from a certified geologist or engineer that indicates why the well site cannot be located to avoid the trees. If Operator has chosen to pay into the Tree Mitigation Fund, such funds shall be paid prior to final approval of a Drilling and Production Site within an ESA. c. Show location of ESAs on proposed Drilling and Production Sites. 2. All applications for Watershed Protection Permits shall be filed with the Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City shall provide a written explanation of the deficiencies if requested by the applicant. The City shall retain a processing fee determined by the City Council. The City may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No application shall be deemed accepted for filing until the application is complete. C. Decision. 1. Each application for a Watershed Protection Permit for gas well development shall be decided by the Director of Environmental Services following DRC review. 2. Criteria for Approval. In deciding the application for a Watershed Protection Permit, the DRC shall apply those standards set forth in Section 35.22.6.D. The DRC may attach such conditions to approval of a Watershed Protection Permit as are necessary to assure that the requirements of Subsection D are met. 3. Each Watershed Protection Permit approved by the DRC shall: a. Identify the name of each well subject to the permit; b. Specify the date on which the Permit was issued; c. Incorporate by reference all applicable standards of approval; and d. Incorporate by reference all applicable conditions of approval. D. Watershed Protection Permit Criteria The standards in this subsection are adopted pursuant to the authority granted by Texas Local Government Code, Section 551.002 and Chapter 211 and are intended to minimize adverse impacts on areas within the Flood Fringe or ESA, reduce flood damage, and lessen the potential for contaminating surface water or any water supply. 1. Location of Sites. Drilling and Production Sites shall be located outside ESAs whenever practicable to minimize adverse impacts on these areas, reduce flood damage, and lessen the potential for contaminating surface water or any water supply. 2. Riparian Buffers. For all ESAs prior to the approval of a Gas Well Development Plan: a. If a riparian buffer is designated as "fair" to "excellent" ESA, the designated protective stream buffer width as specified in Subchapter 17 of the Denton Development Code shall apply, and no encroachments shall be allowed. b. Within all areas except unstudied floodplains, if the stream is designated as a "poor" ESA, the designated width of the protective stream buffer shall be decreased by either fifty (50) percent or to the limits of the floodway whichever is greater, but in no instance shall the protective stream buffer width be decreased below twenty -five (25) feet measured each direction from the centerline of the existing channel. 3. Tree Mitigation. Tree mitigation for gas wells located in an ESA shall be required and shall be calculated on a one to one replacement value for one hundred (100) percent of the dbh of trees removed from the Drilling and Production Site. Tree mitigation shall be accomplished by planting replacement trees, within a floodplain, on -site or off -site with similar tree species or by payment into a Tree Mitigation Fund. Tree Mitigation Funds that are specific to ESA's will be kept separate from other Tree Mitigation Funds and will only be used to either acquire wooded floodplain or riparian property that remains in a naturalistic state in perpetuity, or to purchase conservation easements within riparian or floodplain areas. Funds may be used to purchase, plant, and maintain trees on public property, as long as the public property is within a riparian area or floodplain. 4. Tree Removal Any request to remove tree(s) shall be accompanied by a letter from a certified geologist or engineer that indicates why the well site cannot be located to avoid the trees. If Operator has chosen to pay into the Tree Mitigation Fund, such funds shall be paid prior to final approval of a Drilling and Production Site within an ESA. 5. Limitation on Well Heads. Only one (1) well head may be placed in the Flood Fringe or ESA under the following conditions: a. Storage tanks or separation facilities shall be constructed at least eighteen (18) inches above the established Base Flood elevation plus the surcharge depth for encroachment to the limits of the floodway having a one (1) percent chance of being equaled or exceeded in any year. b. A hydrologic and hydraulic engineering study shall be performed by a Registered Professional Engineer. The study shall be submitted to the Engineering Department in a technical report for review by the City Engineer or his designated representative. The report shall demonstrate that the proposed facilities will have no adverse impacts on the carrying capacity of the adjacent waterway nor cause any increases to the elevations established for the floodplain. When the Special Flood Hazard Areas (SFHA) on the subject site is designated as "Zone A" on the FIRM Panel, or the SFHA is not identified on the FIRM Panel, the following approximate method may be used to evaluate the impacts from gas well development. A flow rate shall be calculated using procedures set forth in the City of Denton Drainage Criteria Manual. Using Manning's Equation with an estimate of the average slope of the stream, measurements of a single irregular cross - section geometry at the well site, and the one hundred (100) year discharge rate, the average velocity and normal depth may be calculated. Calculations shall be provided for the unaltered existing channel cross - section and for the proposed modified channel cross - section and submitted to the City for review and approval prior to construction within these areas. c. No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Site Plan or Gas Well Development Plat, may be filled. 6. Additional Standards inside City Limits. For land inside the City limits, all conditions imposed by any applicable SUP, MPC District or a PD District for the land subject to the Watershed Protection Permit, as well as the standards in Section 35.22.5.17, shall apply. E. Post- approval Procedures. I If evidence from water quality monitoring efforts indicates that contamination is occurring from gas wells, the Operator shall remove, cause to be removed, or otherwise remediate contamination, as required by the Oil and Gas Inspector including but not limited to Waste Minimization Practices established by the RRC. Cleanup operations shall begin immediately. A re- inspection fee shall be charged as established by the City Council and published in the Application Criteria Manual. 2. An associated Watershed Protection Permit shall expire with the expiration of the Gas Well Development Site Plan and may not be extended prior to expiration. 35.22.65. - Watershed Protection Permits for Gas --- I Formatted Well Develo>GZments. A. Applicability. Formatted: Font: Bold -2 I. A Watershed Protection Permit shall be approved prior to approval of any Gas Well Development Site Plan, Gas Well Development Plat, or Gas Well Permit that includes land in any floodplain or ESA within the corporate limits or ETJ of the city. Approval of a Watershed Protection Permit authorizes the processing of a complete application for a Gas Well Development Site Plan or Gas Well Development Plat, as the case may be, that includes land in a floodplain or ESA. t - - -. -_l Formatted: Indent: Left: 0.5" An apphcation for a Watershed Protection Permit shall contain the following Formatted: List Paragraph, Numbered + Level: information and Such information as may be r 1 + Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment: Left + Aligned at: 0.5 + Indent at: Environmental Set-vices Department, which is reasonably necessary to review and 0.75" determine whether the )r posed devel<rpment and required facilities meet the reduirements of this Subchapter and as reduired b the lication Criteria Manual. In addition the information shall include the followingy information � Formatted Indent: Left 0 .� Formatted: List Paragraph, Numbered + Level: 1 + Numbering Style: a, b, c, ... + Start at: 1 + a. A Free IriventoTy Plan Shall ShC)W file 1CJeatiCJn of I;SAS on any proJfJSed Drilling Alignment: Left + Aligned at: 0.75' + Indent and Production Site. at: 1" - -- [ :_Indent:_ Left: 0" - - -- - - - -- - - -- b. A from a certified- — Formatted: List Paragraph, Numbered + Level: eolo�ist or engineer that indicates Why the Well site cannot be pleated to avoid 1 + Numbering Style: a, b, c, ... + Start at: 1 + Alignment: Left + Aligned at: 0.75' + Indent at: 1" the trees. If the ()aerator has chosen toy into the d'ree Vliti(5ation Fund, such funds shall be paid prior to final approval of a Drilling and Production Site within an ESA. c. Show location of ESAs on and Production Sites. for Watershed Protection Permits shall be filed with - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Department, who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City shall provide a written explanation of the deficiencies if requested by the applicant. The City shall retain a processing fee determined by the City Council. The City may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the O(Verator. No application shall be deemed accepted for filing until the application is complete. decided by the Director of Environmental Services following DRC review 2. Crite rotection Permit; the DRC shall a ly those standards set forth in Section 35.22.6.D. The DRC may attach such conditions to approval of a Watershed Protection I'errnit as are necessary to assure that the requirements <,l' Subsection D ale met. 3. Each Watershed I "rotection Permit aaproved by the DRC shall: iS. 'i- 1iE;`- -�lri�. - "cescreec „I• „l• :` "1(kEPr1as°°t J'�°— £r°= rrzc }rs'.r-sar �.. `:M -ii1 + a. identifv the name of each well subject to the Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Left, Indent: Left: 0.5 ", Space After: 10 pt, Line spacing: Multiple 1.15 li, No bullets or numbering, Pattern: Clear Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: List Paragraph, Numbered + Level: 1 + Numbering Style: a, b, c, ... + Start at: 1 + Alignment: Left + Aligned at: 0.75" + Indent at: 1" Formatted: Indent: Left: 0.5” Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: List Paragraph, Numbered + Level: 1 + Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment: Left + Aligned at: 0.5" + Indent at: 0.75 ", Tab stops: 0.5 ", Left + Not at 1" Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Indent: Left: 0 ", First line: 0 ", Tab stops: 0.5 ", Left + Not at 1" Formatted: Font: Bold -- - - - - -- -- Formatted: List Paragraph, Numbered + Level: 1 + Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment: Left + Aligned at: 0.5" + Indent at: 0.75 ", Tab stops: 0.5 ", Left + Not at 1" Formatted: Font: Bold Formatted: Indent: Left: 0 ", First line: 0 ", Tab stops: 0.5 ", Left + Not at 1" Formatted Formatted ---------------------------------------------------------- Formatted Formatted ----------------------------------------------------------------------------- Formatted: Font: Not Bold Formatted Formatted -k- bb Specify the date on which the Permit was issued; "[Formatted Formatted -------------------------- +i+- ". ncorporate by reference all applicable standards of approval; and gi Formatted ------------------------ Formatted i-k d. Incorporate by reference all applicable conditions of approval. Formatted Formatted SD. Watershed Protection n,., ,.:.,.file .a.. for- 1z7,.n.. 11,.,.. tpa OIR -WARa -FAIRO A4u Formatted ESA's. Permit Criteria Formatted Formatted The standards in this subsection are adopted pursuant to the authority granted by Texas -- Formatted: Indent: Lett: os" Local Government Code, Section 551.002 and Chapter 211 and are intended to minimize adverse impacts on areas within the Flood Fringe or ESA, reduce flood damage, and lessen the potential for contaminating surface water or any water supply. -- -- Formatted: Indent: Hanging: 0.25', Tab a. Tt,o „+ n 6 ,a n e ,hall apply to Trip:.,, .,a U,eEkletie1 s4e stops: 1 ", Left .-„to limits 444@ Git. „ P@Qt,,., 41;i , tl,o RTT „Ftl,o C';t, 4P@t4t,,.4 b---1. Location of Sites. Drilling and Production Sites shall be located outside ESAs— — Formatted: Indent: Lett: 0.5" whenever practicable to minimize adverse impacts on these areas, reduce flood damage, and lessen the potential for contaminating surface water or any water supply. 2. Riparian Buffers. For all -ESAs prior to the approval of a Gas Well Development — Formatted: Normal, Indent: Left: 0.5', Plan: Hanging: 0.25', No bullets or numbering, Tab stops: Not at 1" + 1.25' tea. If a riparian buffer is designated as "fair" to "excellent" ESA, the designated- - -- Formatted: Indent: Left: 0.75', Hanging: protective stream buffer width as specified in Subchapter 17 of the Denton 0.25', Tab stops: Not at 1.5 Development Code shall apply, and no encroachments shall be allowed. — __ — Formatted: Indent: Hanging: 0.25' fib. Within all areas except unstudied floodplains, if the stream is designated as ate-- Formatted: Indent: Left: 0.75', Hanging: "poor" ESA, the designated width of the protective stream buffer `shall be 0.25', Tab stops: Not at 1.5 decreased by either fifty (50) percent or to the limits of the floodway whichever is greater, but in no instance shall the protective stream buffer width be decreased below twenty -five (25) feet measured each direction from the centerline of the existing channel. — — Formatted: Indent: Left: 0.75' e3. Tree Mitigation. Tree mitigation for gas wells located in an ESA shall be required Formatted: Indent: Left: 0.5 ", Tab stops: and shall be calculated on a one to one replacement value for one hundred (100) 0.75', Left + Not at 1" percent of the dbh of trees removed from the Drilling and Production Site. Tree mitigation shall be accomplished by planting replacement trees, within a floodplain, on -site or off -site with similar tree species or by payment into a Tree Mitigation Fund. Tree Mitigation Funds that are specific to ESA's will be kept separate from other Tree Mitigation Funds and will only be used to either acquire wooded floodplain or riparian property that remains in a naturalistic state in perpetuity, or to purchase conservation easements within riparian or floodplain areas. Funds may be used to purchase, plant, and maintain trees on public property, as long as the public property is within a riparian area or floodplain. U r l tiet shall eeimini the fel' �Te�t�- appric -aa�� g l; ;.,.a t A T,-oo IQ @t4wr 121at �,L,�11 �,L,.... tl,o lReatiRp „F RQ A s oa 4-4. Tree Removal Any request to remove tree(s) shall be accompanied by a letter - - Formatted: Indent: Lett: 0.5, Tab stops: Not from a certified geologist or engineer that indicates why the well site cannot be at 1.25" located to avoid the trees. If Operator has chosen to pay into the Tree Mitigation Fund, such funds shall be paid prior to final approval of a Drilling and Production Site within an ESA. 5. Limitation on Well Heads. Only one (1) well head may be placed in the Flood Fringe or ESA under -- -- Formatted: Indent: Lett: 0.5, Tab stops: Not the following conditions: at 1" -- Formatted: Indent: Hanging: 0.25' tea. Storage tanks or separation facilities shall be constructed at least eighteen— - Formatted: Indent: Lett: 0.75 ", Tab stops; (18) inches above the established Base Flood elevation plus the surcharge depth Not at 1.25' for encroachment to the limits of the floodway having a one (1) percent chance of being equaled or exceeded in any year. 4b. A hydrologic and hydraulic engineering study shall be performed by a Registered Professional Engineer. The study shall be submitted to the Engineering Department in a technical report for review by the City Engineer or his designated representative. The report shall demonstrate that the proposed facilities will have no adverse impacts on the carrying capacity of the adjacent waterway nor cause any increases to the elevations established for the floodplain. When the Special Flood Hazard Areas (SFHA) on the subject site is designated as "Zone A" on the FIRM Panel, or the SFHA is not identified on the FIRM Panel, the following approximate method may be used to evaluate the impacts from gas well development. A flow rate shall be calculated using procedures set forth in the City of Denton Drainage Criteria Manual. Using Manning's Equation with an estimate of the average slope of the stream, measurements of a single irregular cross - section geometry at the well site, and the one hundred (100) year discharge rate, the average velocity and normal depth may be calculated. Calculations shall be provided for the unaltered existing channel cross- section and for the proposed modified channel cross - section and submitted to the City for review and approval prior to construction within these areas. c. No more than ten (10) percent of the floodplain, within the limits of the Gas Well Development Site Plan or Gas Well Development Plat, may be filled. -- — Formatted: Indent: Left: 0 ", Tab stops: Not at 0.75" rie shall lb t F �ha-11 b s 9j3C3r�2zxvzx9 9�hi�r�vcg- tH— iiimx2Eliac213�f�— i2-- 1ii9�0E�xv'r'rz22 .mar— v�E�li%g2� —&..i 6. Additional Standards inside City Limits. For land inside the City limits, all conditions imposed by any applicable SUP, MPC District or a PD District for the land subject to the Watershed Protection Permit, as well as the standards in Section 35.22.51, shall apply. I If evidence from water quality monitorin( efl «rts indicates that contamination is occnrrin(5 fron7 (5as wells, the ()aerator shall remove, cease to be removed, or inclndin(� bat not lin7ited to Waste Minimir.ation I�ractices established by the I�1�C. Cleanna operations shall bed in immediately. A re- inslsection fee shall be cllar ed as established by the City Council and published in the Application Criteria Manual. Well Devel<rpn7ent Site flan and may not be extended prior to expiration. Formatted: Indent: Left: 0 ", First line: 0" Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font color: Auto Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Tab stops: 0.75 ", Left Formatted: Tab stops: 0.75 ", Left + Not at 1" 35.22.6. Gas Well Development Site Plans A. Preliminary Gas Well Site Plan 1. Applicability An application for a Preliminary Gas Well Development Site Plan must accompany a request for a Gas Well Combining District. The application will not be deemed complete until a decision has been rendered on the Gas Well Combining District. A request for an amendment to an existing Gas Well Development Site Plan approved prior to the effective date of this amendatory ordinance (Ordinance No. ) shall also require submittal of an application for a Preliminary Gas Well Development Site Plan, and may require submittal of an application for a Consolidation Permit. If an application for a Consolidation Permit is required, the application for the Preliminary Gas Well Development Site Plan will not be deemed complete until a decision has been rendered on the Consolidation Permit. 2. Application Requirements a. A cover page that includes a vicinity map of the Drilling and Production Site; a Sheet Index that identifies the number of Exhibits with titles for each (exhibit titles shall begin with the word `Exhibit' and include the respective letter); the Project Title; the date of preparation; the preparer, operator, and property owner's names; space for the City project number; and a signature block for both the Gas Well Administrator and the City Secretary; b. A map showing transportation route and road for equipment, supplies, chemicals, or waste products used or produced by the gas operation. The map shall include a list of the length of all public roads that will be used for site ingress and egress and the water source proposed for both the drilling and fracturing stages, showing whether the water is to be hauled or piped to the site; c. A site plan of the Drilling and Production Site showing clear site boundary lines and the location of all on -site improvements and equipment, including: tanks, pipelines, compressors, separators, and other appurtenances in relation to the boundaries of the site; d. A legal description of the proposed Drilling and Production Site; and e. An Erosion and Sediment Control Plan. Exhibit must include contact information; a physical site description including: land uses, general vegetation and surface water in near proximity; topography /contour lines both pre- and post - construction; hydrologic analysis including: stormwater directional flow, outfalls, water well related structures and water sources; receiving waters; soils; project narrative with general timeline; well pad site plan including: fueling areas, waste disposal containers, hazardous materials storage, and product and condensate storage tanks ; soil stabilization and erosion control measures including: list of selected stormwater measures, site map of selected stormwater measures locations and final stabilization plans; solid waste management plan, septic /portolet location; and maintenance plan for stormwater controls including schedule and transfer of ownership provision. See Gas Well Erosion and Sediment Control Plan Guidance Document for details. f Upon the decision by the City Council or Gas Well Administrator, a copy of the approved Gas Well Combining District or Consolidation Permit, together with a copy of the approved Watershed Protection Permit, where applicable. 3. Procedures and Criteria a. Processing of application. An application for a Preliminary, Final or Amended Gas Well Development Site Plan shall be processed in accordance with the requirements of Section 35.16.19 of the DDC, and shall be decided by the Oil and Gas Inspector. b. Criteria. The Oil and Gas Inspector shall approve the application if it meets the following standards: i. The application is consistent with the Gas Well Combining District or Consolidation Permit and any conditions incorporated therein. ii. The application is consistent with any applicable SUP, MPC or PD site specific authorization, or Watershed Protection Permit and any conditions incorporated therein. iii. The application meets applicable requirements of section 35.22.8. iv. The size of the Drilling and Production Site is not more than five (5) acres in size, unless such requirement has been modified under the terms and conditions of a Gas Well Combining District. c. Conditions. The Oil and Gas Inspector may impose conditions that assure compliance with the terms of the prior approvals or standards of this Subchapter. 4. Effect. Upon receipt of an approved Preliminary Gas Well Development Site Plan, the operator may commence construction of a gas well drilling and production site. Following construction of the site, the operator is authorized to submit an application for a Final Gas Well Development Site Plan. B. Final Gas Well Site Plan 1. Applicability. A Final Gas Well Development Site Plan is required following construction of the Gas Well Drilling and Production Site and prior to issuance of any Gas Well Permit. 2. Application Requirements a. A mapping exhibit with an accurate legal description of the as -built Drilling and Production Site that was prepared and certified by a Registered Professional Land Surveyor of the State of Texas. Provide closure sheet of bearings and distances used in legal description. The exhibit shall include exact location, dimension, and description of all existing public, proposed, or private easements, and public right -of- way within the lease area, intersecting or contiguous with its boundary, or forming such boundary. Describe and locate all permanent survey monuments, pins, and control points and tie and reference the survey corners to the Texas State Plane Coordinate System North Central Zone 1983 -1999 datum. Provide proposed pipeline route —note that a separate application may be necessary if the proposed route encroaches onto any public easement, right -of -way or land owned by the City of Denton; b. A Landscape Plan. The project review planner will determine if a buffer is required based on the adjacent land use(s). If Planner determines buffer is required, then a landscape plan must be submitted in accordance with the City of Denton's Landscape Plan Checklist. Not every Drilling and Production Site requires a landscape plan; and c. A Tree Survey, for sites with trees. If trees are not present, provide an aerial image for verification. The date of the tree survey must be no greater than two years prior to the Gas Well Development Site Plan application date. d. A copy of the approved Preliminary Gas Well Development Site Plan. 3. Procedures and Criteria a. Processing of application. An application for a Final Gas Well Development Site Plan shall be processed in accordance with the requirements of Section-35.16.19 of the DDC, and shall be decided by the Oil and Gas Inspector. b. Criteria. The Oil and Gas Inspector shall approve the application if it meets the following standards: i. The application is consistent with the approved Preliminary Gas Well Development Site Plan. ii. The application meets applicable standards in Section 35.22.8. c. The Final Gas Well Development Site Plan shall incorporate all conditions required by prior approvals. 4. Effect. The approval of a Final Gas Well Development Site Plan authorizes the operator to apply for a Gas Well Permit and other permits required before commencement of drilling activities on the Drilling and Production Site. C. Amended Gas Well Site Plan If the operator proposes to do any of the following, amended Preliminary and Final Gas Well Development Site Plans shall be required. The applications shall be reviewed and decided in the same manner as the original application: I. Relocate the boundaries of the Drilling and Production Site. 2. Relocate proposed gas wells in relation to the boundaries of the approved Drilling and Production Site 3. Change the access road(s) or the location of the access road(s) 4. Change the location of built structures within the approved Drilling and Production Site. 35.22.6. Gas Well Development Site Plans Style Definition: List Paragraph: Font: (Default) Calibri, Space After: 0 pt, Add space between paragraphs of the same style, Line -A- A. Preliminary Gas Well Site flan spacing: single --------------------------------------------------------------------------------------------- Formatted: Left Indent: Left: 0" 1. licabili gi - PP----- 1, Formatted Formatted: Font: 11 pt, Font color: Auto, 4-.---A An application for a Preliminary Gas Well Development Site Plan Border:: (No border) Formatted: Left, Indent: Left: 0.5 ", Hanging: �=Y1 0.25", Space After: 10 pt, Pattern: Clear, Tab `h4 stops: Not at 0.5" 2m17.5t Formatted: Font: 11 pt, Font color: Auto, aecompany a rec nest for a Gas Well ' rr Border:: (No border) \_ 4!ertl3it-- CombinlnO District . the application 434 - `- - `- - -- ` kC- c�M-�t� Formatt ed: Font: 11 pt, Font color: Auto, 6;f� T11 r,r d1 s Border:: (No border) -- ----------------------------------------------------------- Formatted: Font color: Black z:---- ,hr°°• P�.�- `cc'�ci:�ii'r..u- �s� ' ` :H -it1 -= - -. 1 e- I- l>--- ��1- i�t- i�ltrl� _ e1 - ? +4 will not be 4e4efn ieJ -tc3 deemed complete until= a decision has been r , , ins (sas Well Development �1t Ilantap rAovedlprst for the at 1" Hanging: Left. 0.5" stops: Not amendment fo pan exlst n t e Gas e om inin� r he 0 3 Formatted: Indent: effective date of this amendatory ordinance (Ordinance No. )shall also require submittal of an application for a Preliminary (r`as Well Development Site Plan and ma recuire submittal of an application for a C onsolidation Permit. If an application for a 4e+4 °i -�--T' +Ae, * IeR+ii �C onsolidation Permit is re(Luired, the application for the Preliminary Gas Well Development Site flan will not be deemed complete until a decision has been eve-��a- lend ere d on the Consolidation Permit Formatted: Font: 11 pt, Font color: Auto, l ,,,1 „1 Border:: (No border) z---- �� - °<-2. A�ry�llc itia n Rc.�luire;mc.nts 3x1,.1 T11 S Formatted: Font: 11 pt, Border:: (No border) �: a Sheet Index that identifies the number of Exhibits with titles for each (exhibit titles Shall begin, with *42FE4gi n ands its _'r the respective letter);. the 4. �a� ���¢ ^� �` I�roject Iitle: the date of I etaration: the Darer. operator., and nronerty Formatted: Font: 11 pt, Border:: (No border) ------------------------------------------------------------------------------------------------------------- Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: List Paragraph, Indent: Left: 0.75 ", Hanging: 0.25 ", Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Pattern: Clear -------------------------------------------------------------------------------------------------------------- Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) --------------------------------------------------------------------------------------------------------------- Formatted: Font: 11 pt, Border:: (No border) 113P�r 'T "f� owner's names slate for�the City r�a "3 Formatted: Font: 11 pt, Border:: (No border) :R- **- r''. , 4R-* ° , o --- -44 fi dam' a ' t troje ct number; and a -- Formatted: List Paragraph, Don't adjust space signature block for both the rl� ,1rr�Cats Well Admmtshttoitnd the between Latin and Asian text, Don't adjust t t'6 -- space between Asian text and numbers, C ity Secretary Pattern: Clear, Tab stops: Not at 1" hA b, T mif showm� tianstoitition route. and1� V `�F — — — Formatted: Font 11 pt Border (No border) Formatted. Font. 11 pt, Border.. (No border) £3�E9tY��x3tiee ' '¢vd32ir- -mil£' �c ! ��, s hl; ! - � . ] 1 � � �a�Eraoa for �Ftr —rrr— i Y Formatted: Font: 11 pt, Font color: Auto, uipment. su plres. chemicals or waste Products used of Produced by Border:: (No border) thus operation. The mal shall include a lrst� of the Formatted: Font: 11 pt, Border:: (No border) len *t� h of all �'epubltc ro atds that will be used for site, mire and 9 Formatted: Font: 11 pt, Border:: (No border) Formatted Font: 11 t Border No border dress and the water source pro for both the drrllin� and fracturmr" stages. p ( -- -- - -- -- - - -- -- -- showin whether the water is to be 4..SRT -eft u ed or Prped to the site: Formatted: Font: 11 pt, Border (No border) Formatted: Font: 11 pt, Border:: (No border) c. A site flan of the I7ri11ing and Production Site showing clear site boundary lines and the< Formatted: Font: 11 pt, Border:: (No border) location of all Boon site mpio�ements and cguipmcnt. including a"Y� - -- ?' -� -- - - - -- Formatted: Font: 11 pt, Border:: (No border) tanks l iPelines compressors. Formatted• Font: 11 pt Border: (No border) sep rr rtors. and oth r aurtenances m relation to -- -- -- — � � Formatted: List Paragraph, Don't adjust space €, i+*�thc boundaries of the, site between Latin and Asian text, Don't adjust �\\ ,. space between Asian text and numbers, Pattern: Clear intion of the fk:°-- i- r"rc°e`.s*ez�`r'rcr."ri'r• "! 11z �t �'r`irsc°r'c'�v-cr Production Site; and J "°,- se°c`..- scams?,- ic:'as- •. - -. xx.c, c c, .�cn -c Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: Font: 11 pt, Border:: (No border) Formatted: Indent: Left: 0.75 ", Hanging: 0.25 ", No bullets or numbering, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Pattern: Clear, Tab stops: Not at 1.25" Formatted: Font: 11 pt, Border:: (No border) Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) 3=e. in Erosion rnd 5udrment C ontrol Pl rn. I xhrbrt must rnclude contact inform �rtion: a Formatted: Font: 11 pt, Font color: Auto 1ysical site description includrng: land uses general �ugutatton and surface water in near nrc>xmity: ta:> ray /contour lines both pre- and nc>st- cc>nstnictic>n: lyyclrc>Ic>ic analvsis includine: stormwater directional flow. outfalls. water well related structures and water sources:, receiving waters: soils, project narrative with general timeline: w l pad sit plan including: fueling areas, wart disposal containers. hazardous materials storage. and f roduct and condensate storage tanks ;soil stabilization and erosion control measures including: list of selected stormwater measures. site map of selected stormwater measures locations and final stabliraticxY plans; solid waste management elan. septic /lcxtc> let location; and maim Hance lan for stormwater controls including schedule and transfer of ownership lrc>viscxY. See Gas W 11 Erc>scnY and iediment C'c>ntrol Plan Guidance Document for details. i�f, ,.. -. +:r" c°°iii= i,�c.�- i- .- .x -c-cc • 4'tr., - 1 _,.scric°a,- ite1.! ,! - . ' 4.sc' °crr"rc • art , �t � i-�ik .. ��4'PiTCt f G'�YiE'Cd"tiY$ "'C' 4�ff' 9" G[ �'YCG''r'P�G'Y'SAV�YCYYZCf2'Y2' _ L41 s i�r� --are fat GUpe>n the decisexY l�v th+C'ty C'e>uncl en- Gas Well Lldministraten-. a ce>py e>f the approved Gas Well Combining District or Consolidation Permit. together with a copy of the approved Watershed Protection Permit where applicable. 3. Procedures and Criteria Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: List Paragraph, Indent: Left: 0.75 ", Hanging: 0.25 ", Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Pattern: Clear �i,. Processing ofMt1 Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) 4--a j)plication. An application for a Preliminary, Final or Amended Gas Well Development Site Plan shall be processed in accordance with the reduirements of Section 35.16.19+ffaffn- L- r-fcrteg- of the DDC , and shall be decided by the oil and Gas Insp ector. -------- - -- ----- ---- -- - ---- --- - - b. Criteria. The if it meets the -f-Formatted: Font: 1-1 pt,-Font color-: Auto ---------------- following standards i. The; arplicai on is consistent with the Caas Well C ombining District or C onsolidation Permit and any conditions �incor orated th�erein ----- ------- --- ---- - ---- --- - - - ----- ---- - - ------- - --------- Formatted: Font: 11 pt, Font color: Auto D -------------------------- --------------------------------- conditions incur orated therein. iii 'The application meets "REIcable regturenents of section 35.22.8. (5) acre -in [Formatted: Font 1-1 pt, ---Font --color: --Auto ----------------- I unless such requirement s Well Combining District. c. Conditions. The e with the terms ofLt�herior approvals �orstan�dards of�thisSubc�hater. 4. Effect. F7pon receipt <,l' an approved Irrelin7inal-y Csas Well Developn7ent `site Ilan, the o erator may commence et)nstrl7etlCJn ofa gas well dri Formatted. Font color: Auto Following an application for a Final Gas Well Development Site Plan. B. Final Gas Well Site Plan I _Applicability, A Final Cias W ll I7evelc>pment Site flan is required f>Ilc>wng ccxistructcxi c>f the Gas Well Drilling and Production Site and rrior to issuance of any Cans Well Permit. 2. _Application Requirements a. A magi r exhibit with in accut tte le al descriptuxi c>f th as built I7tilling ind Productrcxi -t-Formatted: ----- --- ---- - ---- --- - - - ----- ---- - - ------- - ---------- - - - - -- Font: -- 1 -- 1 pt, -- Font -- color: Auto, Site that Border: (No border) of -lexas. Provide closure sheet of bearings and distant s used in legal descrintic>n. 'I he exhibit shall include exact location, dimension. and description of all existing public, ase area. intersecting or contiguous with its boundary. or forming such boundary. Describe and locate all anent survey monuments. ties. and control points and tie and reference the survey corners to the Texas State Plane Ccxxdinate ystem North Central 7cxie 1983 -1999 datum. Provide necessary if the proposed route encroaches onto any—v2hlic easement. ----------- . r -i& j it-of-way- or land- owned- I.Ty- the -City of Dento_n. b. A Landscape Plan. The project review planner will determine if a buffer is required based on the ad P1111, —11-st w Demon's Landscape Plan Checklist. Not every be submitted in accordance with the Cjky A I Drilling and Production Site requires c. A 'I"ree Survey. f:x sites with trees. If trees are nc)t present. provide an aerial image fa:>r verification. The date of the tree survev must be no ereater than two vears prior to the Gas Well Development Site flan application date. d. A copy of the approved preliminary Gas Well Development Site plan. 3- procedures and Criteria shall be processed in accordance with the recauirernents of Section-35.16.19 of the DDC, and shall be decided by the Oil and Gas Inspector. iS. i-l3E;`- -�lri�. - "cescreec „I• „l• :` "1(kEPr1as°°t J'�-- £r°= rrzc }rs'.i-sar ).. `:M -ii1 Criteria. The Oil and Gas Inspector shall approve the application if it meets the f:)llc)win standards: i. I'he application is consistent with the anprc)ved preliminary Gas Well I7evelc)Hment Site Plan. ii. The application meets applicable standards in Section 35.22.8. c. The Final Gas Well Devel opment Site flan shall incoraorate all conditions recguired 1.7 nria:)r I 4. Effect. I'he apprc)val c)f a Final Gas Well I7evelc)pment Site flan authcnves the operatcx- to appl fy a:>r a Gas Well permit and c)ther Hermits required bef:xe ccxnmencement c)f drilling activities on the Drilling and production Site. C. Amended Gas Well Site plan If the o. erator proposes to do any of the following, amended preliminary and Final C)as Well I7evelc)Hment Site Flans shall be required. The applcaticnas shall be reviewed and decided in the same manner as the original application: 1. Relocate the boundaries of the Drilline and production Site. Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: List Paragraph, Indent: Left: 0.5 ", Hanging: 0.25 ", Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Pattern: Clear, Tab stops: Not at 1" Formatted: Space After: 10 pt, Pattern: Clear, Tab stops: Not at 0.75" 2. Rely cats f ra f a sed *as wells 1n relatia n to the ba undaries a f the o f ra ved Drilling and Production Site 3. Change. the 4W=� Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) 47 access road �or the -n�� of �L� +t-- e4y4 Change the ithin the Ref+,i+4 4--N-44 44aa- �4RG44F4,f�e� 4i-*f Reffn,4- Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: Normal, Left, Indent: Left: 0.25", Hanging: 0.25", No bullets or numbering, Pattern: Clear, Tab stops: Not at 1.25" Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) I ----------------- -------------------------------------- Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) -------------------------------------------------------------- Formatted: Font: 11 pt, Font color: Auto, Border: : (No border) ........................................................................... Formatted: Font: 11 pt, Font color: Auto Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) Formatted: List Paragraph, Indent: Left: 0.5", Hanging: 0.25", Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Pattern: Clear, Tab stops: Not at 1" Formatted: Left, Indent: Left: 0.25", Space After: 10 pt, Tab stops: Not at 1" -'—' - –I Formatted: Font: 11 pt, Font color: Auto, and Border:: (No border) Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) L-}fic.r- 'c`ra- rnc°rn -TC°ar Production . Site,. — Formatted: Font: 11 pt, Font color: Auto, Border:: (No border) I z°°°- rhrrrzi -.ti- „tr., ,! iA7 „tr., �•!-, u- e� :�`rii°s�crix"= rYlz$Y c `- `rrxei° }rac -c,� ii-?iri-iii- fmr"rc'° d^�`c4 Formatted: Font: 11 pt, Not Bold, Font color: Auto, Border:: (No border) Formatted: Left, Indent: Left: 0 ", Space After: 10 pt 35.22.7. - Gas Well Permits A. Applicability and Exceptions 1. Any person, acting for himself or acting as an agent, employee, independent contractor, or servant for any person, shall not engage in the drilling, re- drilling or production of gas wells within the corporate limits of the City without first obtaining a Gas Well Permit issued under this Subchapter. 2. A Gas Well Permit is issued in two stages. The first stage authorizes an Operator to commence Initial Drilling Activities. The second stage authorizes an Operator to commence Completion Operations and Production Activities. 3. A Gas Well Permit shall not be required for exploration for gas. Exploration of gas means geologic or geophysical activities, including, but not limited to surveying and seismic exploration not involving explosive charges, related to the search for oil, gas, or other sub - surface hydrocarbons. A seismic permit is required for impact -based exploration. 4. A Gas Well Permit shall not, however, constitute authority for the re- entering and drilling a well. Re -entry and drilling of a well shall require a new Gas Well Permit. All re- drills require a new and separate Gas Well Permit. B. Application Requirements Applications for Gas Well Permits shall include the following: 1. A completed form provided by the City that is signed by the applicant; 2. The application fee. 3. A copy of the Gas Well Combining District or Consolidation Permit, or a copy of the applicable SUP, PD or MPC District site specific approval. 4. A copy of the Final Gas Well Development Site Plan; and 5. The information required by the Application Criteria Manual, unless such information has been previously provided to the City. C. Procedures and Criteria. 1. Processing of application. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City shall provide a written explanation of the deficiencies if requested by the applicant. The City shall retain a processing fee determined by ordinance. The City may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the Operator. 2. Criteria. The Oil and Gas Inspector shall approve the application if it meets the following standards: a. The application is consistent with the approval Final Gas Well Development Site Plan and any conditions incorporated therein. b. The application meets applicable standards of Section 35.22.8. c. The application is in conformance with the insurance and security requirements set forth in Subsection 35.22.9 and Subsection 35.22.10. 3. Conditions. The Oil and Gas Inspector may not release the approved Gas Well Permit until after the Operator has provided: a. The security required by Subsection 35.22.10; b. Upon the Operator paying the required Road Damage Remediation Fee that will obligate the operator to repair damage excluding ordinary wear and tear, if any, to public streets, including but not limited to, bridges caused by the operator or by the Operator's employees, agents, contractors, subcontractors or representatives in the performance of any activity authorized by or contemplated by the approved Gas Well Permit; and 4. Contents of Permit. Each Gas Well Permit issued by the Oil and Gas Inspector shall: a. Indicate whether Initial Drilling Activities or Completion Operations and Production Activities are authorized; b. Identify the name of each well and its Operator; c. Specify the date on which the Oil and Gas Inspector issued each Permit; d. Specify the date by which drilling shall commence, otherwise the Permit expires (such date shall not be less than 6 months after the date of issuance). e. Specify that if drilling is commenced before the Permit expires, the Permit shall continue until the well covered by the Permit is abandoned and the site restored; £ Incorporate, by reference, the insurance and security requirements set forth in Subsection 35.22.8 and Subsection 35.22.9; g. Incorporate, by reference, the requirement for periodic reports set forth in Subsection 35.22.11 and for Notice of Activities set forth in Subsection 35.22.13; K h. Incorporate the full text of the release of liability provisions set forth in Subsection 35.22.8.A.1; i. Incorporate, by reference, the conditions of the applicable Gas Well Combining District or Consolidation Permit, or if applicable, the terms of the SUP, MPC or PD District site specific authorization or Watershed Protection Permit to which the Gas Well Permit is subject. j. Incorporate, by reference, the information contained in the Permit application; k. Incorporate, by reference, the applicable rules and regulations of the RRC, including the applicable "field rules "; 1. Specify that no drilling operations (including the construction of internal private access roads) shall commence until the operator has provided the security required by Subsection 35.22.9; m. Contain the name, address, and phone number of the person designated to receive notices from the City, which person shall be a resident of Texas that can be served in person or by registered or certified mail; n. Incorporate by reference all permits and fees required by the Fire Code; o. Incorporate the well's RRC permit number and the American Petroleum Institute (API) number; p. Incorporate, by reference all other applicable provisions set forth in the DDC; and q. Contain a notarized statement signed by the Operator, or designee, that the information is, to the best knowledge and belief of the Operator or designee, is true and correct. r. Contain a statement that the Operator is required to comply with all applicable federal and state laws and regulations, which the City will verify compliance as part of its periodic inspections. s. Contain a statement that the Operator acknowledges and voluntarily consents to be inspected by the City to ensure compliance with this Subchapter, the DDC, the City Code, and applicable state and federal laws. 5. Denial of Permit a. The decision of the Oil and Gas Inspector to deny an application for a Gas Well Permit shall be provided to the operator in writing within ten (10) days after the decision, including an explanation of the basis for the decision. 3 b. If an application for a Gas Well Permit is denied by the Oil and Gas Inspector, nothing herein contained shall prevent a new Permit application from being submitted to the City for the same well. D. Expiration of Gas Well Permit. 1. A Gas Well Permit is valid for six (6) months and shall automatically expire, unless the particular stage of authorized gas well drilling and production activity has commenced prior to expiration. 2. If a Gas Well Permit has been issued by the City but the particular stage of authorized gas well drilling and production activity has not commenced prior to the expiration of the permit, the permit shall not be extended unless a special exception has been approved by the Board of Adjustment pursuant to 35.22.16; however, the Operator may reapply for a new permit. 3. If Completion Operations and Production Activities have commenced prior to the expiration of the Gas Well Permit issued by the City for that particular activity, the permit shall continue, and Operator shall be subject to an Annual Inspection and Administration Fee. 4. If gas well drilling and production activities have commenced for either stage of gas well and production activities following issuance of a Gas Well Permit by the City before the expiration date, the approved Drilling and Production Site and all activities shall be subject to inspections by the City to ensure compliance with terms and conditions of the Gas Well Permit and all applicable standards of the DDC. E. Transfer of Gas Well Permit. A Gas Well Permit may be transferred by the Operator with the written consent of the City if the transfer is in writing signed by both parties, if the transferee agrees to be bound by the terms and conditions of the transferred Permit, if all information previously provided to the City as part of the application for the transferred Permit is updated to reflect any changes, and if the transferee provides the insurance and security required by Section 35.22.9 and Section 35.22.10. The insurance and security provided by the transferor shall be released if a copy of the written transfer is provided to the City and all other requirements provided in this subsection are satisfied. The transfer shall not relieve the transferor from any liability to the City arising out of any activities conducted prior to the transfer. M 35.22.7. - Gas Well €-. e>r°mits AA. Applicability and I xce tions � �.at 0 5" Not .� l contractor, or or servant for himself or person, shall not as an engage agent, the drib employee, independent- Formatted: Indent: Lett. 0.5 ", Tab stops: c)r production of gas wells within the corporate limits of the City without first obtaining a Gas Well Permit issued under this Subchapter. Formatted: Indent: Left: 0.5 ", Hanging: 4'2.A Gas Well Permit is issued in two stages. The first stage authorizes an Operator to* 10.25 " commence Initial Drilling Activities. The second stage authorizes an Operator to Formatted: Indent: Left: 0.5 ", Tab stops: Not commence Completion Operations and Production Activities. xxn eii ,, Oas xxL,.rr at 0.5" --- ---g, testifig, Stte preparatteR - ---= =- ---a Of figS Of ----- Jafft4efieS, flldggifig Mid ik r Formatted: Indent: Left: 0.5 ", Hanging: G3. A Gas Well Permit shall not be required for exploration for gas. Exploration of gas 0.25" means geologic or geophysical activities, including, but not limited to surveying and Formatted: Indent: Left: 0.5 ", Tab stops: Not " seismic exploration not involving explosive charges, related to the search for oil, gas, at 0.5 or other sub - surface hydrocarbons. A seismic permit is required for impact -based exploration. Formatted: Indent: Left: 0.5 ", Hanging: _ however, constitute authority for the re- entering and- 0.25 I4 drilling l well hallshrequire lnot, �a well. Re -entry and drilling of a -,, ; ' Formatted: Indent: Left: 0.5 ", Tab stops: Not a new Gas Well Permit. All re- drills require a new and [at o.5" separate Gas Well Permit. 4--13. Application Retiuirements Applications for Gas Well Permits shall b r��include the following: 1. �l�tlr�,r- ��a- Sao =-aYar A completed form provided by the City; l tll 13 that is signed by the it r— 4 licant; 4 k*e7 foe 44L-2. The application fee,. - - . Formatted Tab stops 0 75 Left - - -�,, ° ^ ^' 3.A L copy of the Gas Well Combining District or Consolidation Permit, or a .................. . copy of the applicable SUP, PD or MPC Districtor- sitc specific approval. Final Gas Well Development Site Plan; and 4. A c(My-Lfthc Fir indent: Left: 0.5" Hanging'. No bullets or numbering 0.25", ............. ------ ------------------------------------------------------- 6--Sh4k++e4ff4e44+45. The information required by the Application Criteria Formatted: Indent: Left: 0.5", Hanging: - Manual, unless s uch information has been previously provided to the City. 0.215" C. Procedures and Criteria. 1. Processing of a d with the Department who shall unniedrately forward all applications to the QRC for review. Incomplete E lications shall be returned to RLI the applicant, which case casethe City shall provide a written explanation <,1' the dc,liciencies if requested by the {�nplicant. "1'he City shall retain a processin(� fee determined by ordinance. "1'he City re the Railroad Commissian re�ardin� the determination of the aOperator. 2. Criteria. The Oil and Gas Inspector shall approve the application if it meets the follow-im, standards: a. "1'he application is consistent with the approval Final Csas Well Development Site Plan and any conditions incorporated therein. b. Tl application meets applicable standards oP Section 35.22.5. c. The application is in conformance with the insurance and security requirements set forth in Subsection 35.22.9 and Subsection 35.22. 10. 3. Conditions. The Oil I Permit until after the operator has provided: a "1'he security re(�tiiredb�,Stibsec�tioii 35.22.10, b. Upon Re+AFee that will oblio ate the operator to repair damage excluding ordinary wear and tear, if anu , to public streets including but pat limited to bridges caused by subcontractors or representatives in the peri <rrmance <,1' any activity authorize d by or contemplated by the, approved. Csas Well Permit; and. 4. Contents of Permit. Each Gas Well Permit issued by the ()il and Csas Inspector shall: a. Indicate whether Initial Drilling Activities or Completion Operations and Production Activities are authorized, b. Identify the name of each well and its Qnerator c�. Slsecily the date on which the C)il and. Csas Inslsector issued each Permit; de. Specily the date by which drillin(� shall commence, otherwise the Permit expires (such date shall not. be less than C months niter the date <,I' issuance). e4 �Secif Specify if �drilhn is commenced before the Permit expires, the Permit shall continue until the well covered by the Permit is abandoned and the site restored- fe-. I requirements set forth in Subsection 35.22.8 and Subsection. 35.22.9y F.,.,td. N. underline, Font .I., Auto €g. Incor orate, b�refer�cnce t�here( requirement for periodic reports set —forth in Subsection 35.22.11 and for Notice of Activities set forth in Subsection 35.22.1-23 h.Inc<rrperrate the firll text <,f the release <,f liability )visions set forth in Subsection 35.22 _8 A 1 ih. I Well Combinimy District or Consolidation PD District site h the Gas Well Permit is subject. Inc<rmcrrate, Iry reference, the ini <armation contained in the Permit application; +k. Inc<rrperrate, by reference, the applicable rules and lations of the _RRC i!2L�Iudmu the �ahc�ablc �fi�cldrules�� kl. Specify that no drilling operations (including the construction cif internal linli—te access roads security required Iry Subsection 35.22.91 Im. Contain the name, address, and phone nun7ber <,f'the person desi(rnated to receive notices from the served iLi.Iserson <rr by r gvstered or certified nyul ffill. Incrrrperrate by reference all permits and fees required by the Fire C ode; 1+0.1 troleurn Institute (API number 2E Incor orate Iry reference all other applicable pr<rvisions set f <rrth in the DDC and q Contain a notarized statement signed by the Operator, or desr�nc e, at the i is true and correct. r Contain a statement that the Operator is required to comply with all Mlicable federal and state as part. <,P its periodic inspections. s. Contain a statement that the Operator acknowledges and voluntarily consents to be inspected by the City to ensure compliance with this Subchapter, the DDC, the City Code, and applicable state and federal laws. 5. Denial of Permit a. The decision of the Oil and Gas Inspector to den y in application for a Gas, Well ------------------ - -------- Permit decision, including an ex lanation <,I'the basis I <rr the decision. b. II' an application I <rr a Csas Well Permit is denied Iry the ()il and Csas Inspector, Li.(2tInn& herein contained shall prevent a new I'errnit application from being submitted to the City for the �well. D.D. --IIX �lratlon ration of Permit I. A Gas Well Permit is s the particular stai2e of authorized Lyas well drillinLy and production activity has-,,e commenced prior to expiration. 2. If a Gas Well Permit has been issued-by-the- City but the particular stage of authorized was well drilling and production activit�hase not commenced prior to the [ration of the permit, the permit shall not be extended unless a special exception has been approved by the E4oard of Adrustment pursuant to 35.22.16; however, the Operator may reapply t<rr a new permit. 3. If Completion Operations and Production Activities have commenced prior to the expiration <,Pthe Csas Well Permit issued by the City for that particular activity the permit shall continue, and Operator shall be subject to an Annual Inspection and Administration IFee 4- If gas well drilling and production have comnenccd for either stage of a well and production activities followino iSSMInce of Gas Well Permij �bthe Citbel®rethe expiration date, the approved Drilling and Production Site and all activities shall be subject to inspections by the City to ensure compliance with terms and conditions of the Gas Well Permit and all applicable standards of the DDC. E. Transfer of Gas Well Permit. Gas Well nsent of the City if the transfer is in writi the terms and conditions of the transferred Permit if all information previously provided to the for the transferred Pernut is updated to reflect any chan(5es, and if the transferee pr�avides the insurance and security required by `iection 35.22.9 and Section 35.22. 10. The insurance and securrtyjjEjyjded by the transferor shall be released r recluiren7ents pr<avided in this subsection are satisfied. "1'he transfer shall not relieve the transfer<rr from any liability to the C ity arisin( out <af any activities conducted pri<rr to the transfer. Formatted: Indent: Left: 0.25', Hanging: 0.25" -------------------------------------------------------------------------------------------------------------------- Formatted: Font: Not Bold, Font color: Black 35.22.8. - Standards for Gas Well Drilling and Production. The drilling and production of gas wells within the City limits shall be subject to the following standards. A. Separation standards. 1. Well Setbacks a. No new gas well may be located on an approved Drilling and Production Site that is within twelve hundred (1,200) feet of any Protected Use, or freshwater well currently in use at the time a complete application for a Gas Well Permit is filed, or within twelve hundred (1,200) feet of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures, unless the gas well drilling and production site has been approved under a Gas Well Combining District pursuant to Section 35.7.16, or has met the criteria for a Consolidation Permit under section 35.22.4. b. Except where more stringent separation distances are specified, the minimum separation distance between a Drilling and Production Site subject to this subsection and all other habitable structures other than those listed in 35.22.8.A.l.a, shall be five hundred (500) feet. In the case where the habitable structure is an industrial use, the minimum separation distance may be reduced to not less than two hundred fifty (250) feet if the owner of the industrial use consents to the reduction in a notarized written waiver. c. The minimum separation requirement established in 35.22.8.A.2.a above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Except that the Zoning Board of Adjustment shall not reduce the minimum separation distance to any less than five hundred (500) feet. d. Separation distances shall be measured from the boundary of the Drilling and Production Site identified on the Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected Use, or freshwater well currently in use at the time a complete application for a Preliminary Gas Well Development Site Plan is filed, or the closest lot line of any undeveloped Protected Use lot within a proposed subdivision plat. e. The separation standards of this section apply to a site containing a compressor station. 2. Reverse Setbacks a. A reverse setback is the distance that a proposed use or structure other than uses or structures associated with gas well development must be separated from an approved Drilling and Production Site. A reverse setback is measured by the rules in Section 35.22.8.A.l.d. b. A Protected Use may not be located within six hundred (600) feet of a consolidated site established by a Gas Well Combining District or by approval of a Consolidation Permit pursuant to Section 35.22.4. A Protected Use may not be located within three hundred (300) feet of all other Drilling and Production Sites, provided that the Protected Use is not served by a freshwater well that is located within twelve hundred (1,200) feet of the Drilling and Production Site. d. All other habitable structures may be located within the distance prescribed by the Fire Code from the Drilling and Production Site. B. Prohibited or Restricted Locations, Uses and Activities No gas well drilling and production sites are allowed in the FEMA designated one hundred (100) year floodway. A Drilling and Production Site is not allowed within one thousand two hundred (1,200) feet of the flood pool elevation of Lake Ray Roberts or Lake Lewisville except upon approval of a Specific Use Permit. 2. No gas well drilling and production sites shall be allowed on slopes greater than ten (10) percent. Location of a gas well drilling and production site in a FEMA- designated flood fringe area or in another ESA designated on the map adopted by the City requires approval of a watershed permit subject to the requirements of section 35.22.6. No storage tanks or separation facilities shall be placed in the flood fringe or other ESA except in accordance with Subsection 35.22.6.D.5.a. 4. No gas well drilling and production site shall be located within any of the streets or alleys of the City or streets or alleys shown by the current Denton Plan. No street shall be blocked or encumbered or closed due to any exploration, drilling, or production activities unless prior consent is obtained from the City Manager, and then only temporarily. Nothing in this Section is intended to prevent an operator from drilling directionally to reach a target or bottom hole that is located beneath a prohibited or restricted site. Gas wells may have a target location or bottom -hole location that is under the floodway, an ESA or within one thousand two hundred (1,200) feet of the flood pool elevation of lake Ray Roberts or Lake Lewisville when the gas well is drilled directionally from a location outside such areas. 6. No refining process, or any process for the extraction of products from gas, shall be carried on at a Drilling and Production Site, except that a dehydrator and separator may be maintained on a Drilling and Production Site for the separation of liquids from gas. Any such dehydrator or separator may serve more than one well. Gas Processing Facilities shall require a Specific Use Permit. 7. No person shall place, deposit, or discharge (or cause or allow to be placed, deposited, or discharged) any oil, naphtha, petroleum, diesel, gasoline, asphalt, tar, hydrocarbon substance, or any refuse, including wastewater or brine, from any gas operation or the contents of any container used in connection with any gas operation in, into, or upon any public right -of -way, storm drain, ditch or sewer, sanitary drain or sewer, any body of water, or any private property within the corporate limits of the City of Denton. 8. No Operator shall excavate or construct any lines for the conveyance of fuel, water, or minerals on, under, or through the streets or alleys or other land of the City without an easement or right -of -way license from the City, at a price to be agreed upon, and then only in strict compliance with this Subchapter, with other ordinances of the City, and with the specifications established by the Engineering Department. 9. The digging up, breaking, excavating, tunneling, undermining, breaking up, or damaging of any public street or leaving upon any public street any earth or other materials is prohibited. Construction activities or deposition of any materials or objects creating an obstruction within limits of public right -of -way or easements are prohibited unless the Operator has first obtained written approval from the Engineering Department and, if applicable, has filed a right -of -way use agreement, and then only if in compliance with specifications established by the Department. 10. No pit shall be used or maintained for storage of oil or oil products or oil field fluids, or for storage or disposal of oil and gas wastes. 11. No Class II injection wells shall be located within the City of Denton. C. Site Layout and Design Requirements. The following requirements apply only within City limits. 1. Entrance Gate and Lighting. An entrance gate shall be required. Street lighting shall be required pursuant to Section 26 -76 of the Utility Code of the Code of the City of Denton, Texas or the sign identifying the entrance to the drill site or operation site shall be reflective. Directional lighting shall be provided for the safety of gas well drilling, completion and production operations and shall be installed and operated in a fashion designed to disturb adjacent developments in the least possible manner. 2. Fencing and Landscaping. Fencing, buffering, landscaping and screening shall be required on Drilling and Production Sites. All required fencing, landscaping, 3 buffering and screening must be installed in accordance with the approved Landscape Plan within one - hundred and eighty (180) days after initial drilling of the first approved well. Landscaping and screening shall also be required for sites for Compressor Stations. Landscaping and screening shall comply with the same requirements for Drilling and Production Sites as set forth in this Subchapter and in the DDC. Should the Operator decide to fence in gathering and transmission lines or compressor stations, or both, Operator shall install the fencing in accordance with Subchapter 13 of the DDC. 3. Signage. a. A sign shall be immediately and prominently displayed at the gate of the temporary and permanent Drilling and Production Site. Such sign shall be made of durable material and shall be maintained in good condition. The sign shall have a surface area of not less than 2 �/2 by 2 1/2 feet or more than 4 by 4 feet and shall be lettered in minimum -inch lettering and shall include the following information: i. A statement identifying that there is /are gas well(s) at the Drilling and Production Site, together with the Well Identification Number(s), American Petroleum Institute well number(s) and any other well designation(s) required by the RRC; ii. Name of Operator; iii. Operator's telephone number; iv. Operator's business mailing address; v. Address of Drilling and Production Site; vi. The number for emergency services (911); vii. Telephone numbers of two persons responsible for the well who may be contacted 24 hours a day in case of an emergency; and viii.A statement that reads as follows: "This site may be the subject of further drilling and production and /or hydraulic fracturing." Further, if the Drilling and Production Site has been approved as a Consolidated Site, then there shall be an additional statement that identifies the maximum number of authorized gas wells. ix. The telephone number of the City's Gas Well Division for citizens to call with questions, concerns or complaints. M b. Permanent weatherproof signs reading "DANGER NO SMOKING ALLOWED ", in both English and Spanish, shall be posted at the entrance of each Drilling and Production Site or in any other location approved or designated by the Fire Marshal. Sign lettering shall be four inches in height and shall be red on white background or white on red background. Each sign shall include the emergency notification numbers of the City Fire Department and the Operator, well and lease designations required by the RRC. 4. Painting. All installed, mounted, and /or permanent equipment on Drilling and Production Sites shall be coated, painted, and maintained at all times, including the wellhead, gas processing units, pumping units, storage tanks, above - ground pipeline appurtenances, buildings, and structures, in accordance with applicable guidelines adopted by The Society for Protective Coatings (SSPC). In addition, the following standards are applicable: a. Protective coatings and paints shall comply with any applicable State or City requirements. In absence of any such requirement, protective coatings and paints shall be of a neutral color that is compatible with the surrounding environment. b. All exposed surfaces of the identified equipment must be coated and painted, and free from rust, blisters, stains, or other defects. 5. Electric Lines. All electric lines to production facilities shall be located in a manner compatible to those already installed in the surrounding areas or subdivision. 6. Screening. All Drilling and Production Sites shall be screened with an opaque decorative masonry fence that shall be no less than eight (8) feet in height. a. In lieu of this requirement, an alternative fence that is compatible with the area surrounding the Drilling and /or Production Site may be approved by the Director of Planning and Development. b. Required fencing must be located within three hundred (300) feet of all equipment necessitating fencing requirements under this Subchapter. 7. Lift Compressor Location. Any lift compressor which is installed within an approved Drilling and Production Site shall be located at least twenty -four (24) feet from the outer boundary of the site. 8. Storage Tanks and Separators. a. An Operator is allowed to construct, use, and operate such storage equipment and separation equipment as shown on the approved Gas Well Development Site Plan, except that permanent storage equipment and separation equipment may not exceed eight (8) feet in height. 5 b. The use of centralized tank batteries is permitted as shown on the applicable Gas Well Development Site Plan. 9. Trash Locations. Any rubbish or debris that might constitute a fire hazard shall be removed to a distance of at least 150 feet from the vicinity of any well, tank, or pump station. D. Site Development Standards 1. Hydraulic Fracturing. Commencing on the January 15, 2013, except as provided in sub - paragraph (v) of this section, for each well completion operation with hydraulic fracturing: a. For the duration of flowback, recovered liquids shall be routed into one or more storage vessels or re- injected into the Well or another Well, and the recovered gas shall be routed into a gas flow line or collection system, re- injected into the Well or another Well, used as an on -site fuel source, or used for another useful purpose that a purchased fuel or raw material would serve, with no direct release to the atmosphere. If this is infeasible, the requirements in sub - paragraph (c) of this paragraph shall be followed. b. All salable quality gas shall be routed to the gas flow line as soon as practicable. In cases where flowback emissions cannot be directed to the flow line, the requirements in sub - paragraph (c) of this section shall be followed. c. Flowback emissions shall be captured and directed to a completion combustion device, except in conditions that may result in a fire hazard or explosion, or where high heat emissions from a completion combustion device may negatively impact waterways. Completion combustion devices must be equipped with a reliable continuous ignition source over the duration of flowback. d. Releases to the atmosphere during flowback and subsequent recovery shall be minimized. e. The requirements of sub - paragraphs (a) and (b) shall not apply to: i. Each well completion operation with hydraulic fracturing at a gas well meeting the criteria for wildcat or delineation well. ii. Each well completion operation with hydraulic fracturing at a gas well meeting the criteria for non - wildcat low pressure gas well or non - delineation low pressure gas well. C� 2. Soil Sampling. Soil sampling shall be required for all new Drilling and Production Sites. Soil sampling shall be subject to the following requirements: a. Upon application for an Oil and Gas Well Permit, soil sampling shall be conducted prior to the commencement of any drilling at the proposed Drilling and Production Site to establish a baseline study of site conditions. A minimum of one soil sample shall be taken at the location of any proposed equipment to be utilized at the Drilling and Production Site to document existing conditions at the Drilling and Production Site. b. A licensed third party consultant shall be utilized to collect and analyze all pre- drilling and post- drilling soil analyses. The cost of such consultant shall be borne by the Operator. c. Soil samples must be collected and analyzed utilizing proper sampling and laboratory protocol from a United States Environmental Protection Agency or Texas Commission on Environmental Quality approved laboratory. The results of the analyses will be addressed to the City and a copy of the report shall be provided to the Operator and surface estate owner. The analyses will include the following analyses at a minimum: TPH, VOCs, SVOCs, Chloride, Barium, Chromium and Ethylene Glycol. d. Post - drilling soil samples shall be collected and analyzed after the conclusion of drilling of each well. Subsequent to the drilling of each well, periodic soil samples shall be taken as determined by the Oil and Gas Inspector during inspection events to document soil quality data at the Drilling and Production Site. Samples shall include, but not be limited to, areas where removed equipment was located. Results of the analyses shall be provided as described in Subsection D.2.c. e. Whenever abandonment occurs pursuant to the requirements of the RRC and as referenced in 35.22.5.F.9, the Operator so abandoning shall conduct post production soil sampling within three (3) days after equipment has been removed from the Drilling and Production Site to document that the final conditions are within regulatory requirements. Results of the analyses shall be provided as described in Subsection A.2.c. £ If any soil sample results reveal contamination levels that exceed the minimum state or federal regulatory levels, the City shall submit the soil sample results to the appropriate state or federal regulatory agency for enforcement. 3. Pits. All pits shall be lined and shall be designed, constructed, and installed in accordance with the liner standards set forth by the RRC. Any new Drilling and Production Sites proposed after January 15, 2013 shall utilize a closed -loop mud 7 system. The following additional standards shall apply to pits within a Drilling and Production Site. a. The type of pit used in drilling operations shall be specified at the time of permitting. The Oil and Gas Inspector may perform a contamination assessment for any reserve pit, completion/work -over pit, drilling fluid disposal pit, fresh makeup water pit, mud circulation pit, washout pit, or water condensate pit. The following concentrations for contaminants will be used to determine if contamination exists within any materials in the pits: Compound Concentration limit TPH 15 mg /L BTEX 500 µg /L Benzene 50 µg /L From 30TAC 321.131.138 If concentrations exceeding these values are detected, the operator shall remove, cause to be removed, or otherwise remediate contaminants, to below the limits provided herein. Cleanup operations shall begin immediately. Cleanup activities that do not begin within twenty -four (24) hours of notification by the oil and gas inspector shall be considered a violation of this Subchapter. b. Only freshwater -based mud systems shall be permitted. Saltwater -based mud systems and oil -based mud systems are prohibited. c. Chloride content of fluids held in pits may not exceed three thousand (3,000) milligrams per liter. d. No metal additives may be added to any drilling fluids. e. All fluid produced from the well during completion of production shall be held in enclosed containers while stored on the property. f. All fluids shall be removed ( "de- watering ") from the pits within thirty (30) days of completion of drilling operations. g. The pit and its contents shall be removed from the premises within ninety (90) days after completion of the drilling of a well; provided, however, that the permittee may apply for a ninety (90) -day extension from such requirements based on showing of good cause, necessity to maintain said pit, inclement weather, or other factors. The City may designate a period of time shorter than the ninety (90) -day extension set out herein. h. All pits shall be backfilled in accordance with the following schedule. The Director of Planning and Development may grant permission for a pit to remain at the site if the surface property owner submits a written request. (i) Reserve pits and mud circulation pits shall be dewatered within 30 days and backfilled and compacted within ninety (90) days of cessation of drilling activities. (ii) All completion/workover pits used when completing a well shall be dewatered within thirty (30) days and backfilled and compacted within one hundred and twenty (120) days of well completion. (iii)All completion/workover pits used when working over a well shall be dewatered within thirty (30) days and backfilled and compacted within one hundred and twenty (120) days of completion of re -work operations. (iv)Basic sediment pits, flare pits, fresh mining water pits, and water condensate pits shall be dewatered, backfilled, and compacted within one hundred and twenty (120) days of final cessation of use of the pits. i. Each operator must submit to the City a water conservation plan for uses of water. The plan must provide information in response to each of the following elements. (i) A description of the use of the water in the production process, including how the water is diverted and transported from the source(s) of supply, how the water is utilized in the production process, and the estimated quantity of water consumed in the production process and therefore unavailable for reuse, discharge, or other means of disposal; (ii) If long -term, five (5) to ten (10) years, water storage is anticipated, quantified five -year and ten -year targets for water savings and the basis for the development of such goals; (iii) A description of the device(s) and /or method(s) within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply; X, (iv) Leak - detection, repair, and accounting for water loss in the water distribution system; (v) Application of state -of -the -art equipment and /or process modifications to improve water use efficiency; and (vi) Any other water conservation practice, method, or technique which the user shows to be appropriate for achieving the stated goal or goals of the water conservation plan. 4. Erosion and Sediment Controls. Erosion and sediment control practices shall be conducted for all gas wells. The Operator shall comply with the Erosion and Sediment Control Plan as approved by the City. E. Operations and Equipment Standards. The following requirements apply only within City limits. 1. Nuisances. Adequate nuisance prevention measures shall be taken to prevent or control offensive odor, fumes, dust, noise and vibration. 2. Vapor Recovery Units. a. Vapor recovery equipment is required for facilities not included under Rule §106.352 of TAC Title 30, Part 1, Chapter 106, Subchapter O; or its successor regulation. b. An Operator shall notify the Oil and Gas Inspector within two (2) days after the first sale of gas from a well. 3. Compliance with Rules and Regulations. The Operator shall at all times comply with the applicable rules and regulations of the RRC including but not limited to all applicable Field Rules. 4. Debris. The Drilling and Production Site and site access road shall at all times be kept free of debris, pools of water or other liquids, contaminated soil, weeds, brush, trash or other waste material outside the Drilling and Production Site. 5. Venting and Flaring. There shall be no venting or flaring of gases in residential areas except as allowed by the RRC or TCEQ. If venting or flaring is allowed by the RRC or TCEQ, a permit must be obtained from the Fire Marshal in accordance with the Fire Code. Further, the venting or flaring activities shall not be located closer than twelve hundred (1,200) feet from any Protected Use, unless: (1) a setback variance has been granted pursuant to 35.22.5; or (2) if practical and if approved by the City Fire Marshal, ground flaring that is wholly enclosed or screened with a masonry wall. Except in the case of an emergency, gas well flaring shall only be conducted during day -time hours. 10 6. Vehicle Placement. Vehicles, equipment, and machinery shall not be placed or located on a Drilling and Production Site (or on any public street, alley, driveway, or other public right -of -way) in such a way as to constitute a fire hazard or to unreasonably obstruct or interfere with fighting or controlling fires. 7. Time of Fracturing. Fracturing operation shall be scheduled to occur during daylight hours unless the Operator has notified the Oil and Gas Inspector that fracing will occur before or after daylight hours to meet safety requirements. 8. Pneumatic Drilling Pneumatic drilling shall not be permitted. F. Safety Requirements. The provisions of this section shall apply within the corporate limits of the City of Denton. 1. The drilling and production of gas and accessing the Drilling and Production Site shall be in compliance with all state and federal environmental regulations. 2. Gathering Lines a. Each Operator shall place pipeline marker sign at each point where a flow line or gathering line crosses a public street or road. b. Each Operator shall place a warning sign for lines carrying H2S (Hydrogen Sulfide) gas as required by the Railroad Commission. c. All flow lines and gathering lines within the corporate limits of the City (excluding City utility lines and franchise distribution systems) that are used to transport oil, gas, and /or water shall be limited to the maximum allowable operating pressure applicable to the pipes installed and shall be installed with at least the minimum cover or backfill specified by the American National Safety Institute Code, as amended. 3. Operating Pressure. Each well shall be equipped with an automated valve that closes the well in the event of an abnormal change in operating pressure. All wellheads shall contain an emergency shut off valve to the well distribution line. 4. Control Device. Each storage tank shall be equipped with a level control device that will automatically activate a valve to close the well in the event of excess liquid accumulation in the tank. 5. Storage Tanks. a. All storage tanks shall be anchored for stability. 11 b. As required by the Fire Code, all storage tanks shall be equipped with either steel or concrete secondary containment systems including lining with an impervious material. The secondary containment system shall be of a sufficient height to contain one and one -half (11/2) times the contents of the largest tank in accordance with the Fire Code. Drip pots shall be provided at pump out connections to contain the liquids from the storage tank. 6. Outdoor Storage Areas. Outside storage areas shall be equipped with a secondary containment system designed to contain a spill from the largest individual vessel. If the area is open to rainfall, secondary containment shall be designed to include the volume of a twenty -four (24) -hour rainfall as determined by a twenty -five (25) -year storm and provisions shall be made to drain accumulations of ground water and rainfall. 7. Lighting System. Drilling and Production Sites shall be equipped with a lightning protection system, in accordance with the City's Fire Code and the National Fire Association's NFPA -780. In addition, tank battery facilities shall be equipped with a remote foam line and a lightning arrestor system. 8. Hazardous Materials Management Plan. A Hazardous Materials Management Plan shall be on file with the Fire Marshal. Any updates or changes to this plan shall be provided to the Fire Marshal within three (3) working days of the change. All chemicals and /or hazardous materials shall be stored in such a manner as to prevent, contain, and facilitate rapid remediation and cleanup of any accidental spill, leak, or discharge of a hazardous material. Operator shall have all material safety data sheets (MSDSs) for all hazardous materials on site. All applicable federal and state regulatory requirements for the proper labeling of containers shall be followed. Appropriate pollution prevention actions shall be required and include, but are not limited to, chemical and materials raised from the ground (e.g., wooden pallets), bulk storage, installation and maintenance of secondary containment systems, and protection from storm water and weather elements. 9. Plugged and Abandoned Wells. All wells shall be plugged and abandoned in accordance with the rules of the RRC; however, all well casings shall be cut and removed to a depth of at least ten (10) feet below the surface unless the surface owner submits a written agreement otherwise. Three (3) feet shall be the minimum depth. After the well has been plugged and abandoned, the Operator shall clean and repair all damage to public property caused by such operations within thirty (30) days. In addition, the Operator shall: a. Submit a copy of its RRC Form W -3A (Notice of Intention to Plug and Abandon) and Form W -3 (Plugging Record) to the Inspector within two (2) business days of filing with the RRC; b. Notify the Oil and Gas Inspector of the intention to plug and abandon a well at least twenty -four (24) hour prior to commencing activities; and 12 c. Submit to the Oil and Gas Inspector the surface hole locations in an acceptable Geographic Information System (GIS) format to accurately map and track well locations. The GIS data may be submitted with an initial Gas Well Permit application or with the annual administrative report. Submission of GIS location data is only required once. d. Submit a copy of a soil sampling analysis as required by Subsection 35.22.5.D.2 . 10. Reclamation Plan. Operators must close each Drilling and Production Site in a manner that minimizes the need for care after closure. To achieve this requirement, the site shall be reclaimed to the condition identified on the Site Reclamation Plan, as nearly as practicable. In the event development encroaches up to the property after drilling and production activities, a reasonable rehabilitation alternative may be approved by the City to ensure the reclaimed site is compatible with the surrounding properties. 11. Pits shall always be operated with a minimum of at least two (2) feet of freeboard above the contents within it. 12. Pit Fencing. For safety reasons, fencing shall be installed to restrict access to a reserve pit or other type of open pit utilized in gas well drilling operation at a drill site within the corporate limits of the City. 13. Catchment Basins. Drip pans, catchment basins and other secondary containment devices or oil absorbing materials shall be placed or installed underneath all tanks, containers, pumps, lubricating oil systems, engines, fuel and chemical storage tanks, system valves, connections, and any other areas or structures that could potential leak, discharge, or otherwise spill hazardous or solid materials. . 14. Clean -up After Completion. After the well has been completed the Operator shall clean and repair all damage to public property caused by such operations within thirty (30) days. 15. Clean -up Operations. After any spill, leak or discharge, the Operator shall remove or cause to be removed all contamination and associated waste materials. Clean -up operations shall begin immediately. 16. Water Conservation Plan. Each operator must submit to the City a water conservation plan for uses of water. The plan must provide information in response to each of the following elements. a. A description of the use of the water in the production process, including how the water is diverted and transported from the source(s) of supply, how the water is utilized in the production process, and the estimated quantity of water consumed 13 in the production process and therefore unavailable for reuse, discharge, or other means of disposal; b. If long -term, five (5) to ten (10) years, water storage is anticipated, quantified five -year and ten -year targets for water savings and the basis for the development of such goals; c. A description of the device(s) and /or method(s) within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply; d. Leak - detection, repair, and accounting for water loss in the water distribution system; e. Application of state -of -the -art equipment and /or process modifications to improve water use efficiency; and f. Any other water conservation practice, method, or technique which the user shows to be appropriate for achieving the stated goal or goals of the water conservation plan. 14 35.22.53. - Standards for Gas Well Drilling and Production. ., —The drilling and production of gas wells within the City limits shall be subject to the- -� Formatted: Indent: Left: 0.25 ", First pine: 0 ", following standards. Tab stops: Not at 0.5" - Formatted Indent: Left 0 25 4A.Separatlon standards 4 ' - Formatted: Font: Not Bold _ � Formatted: Indent: Left: 0.25 ", Tab stops: 1. Well Setbacks Not at 0.75" a. No new has well may be located on an ap roved Drilling and Production Site +nay 4e - -k+e that is within twelve hundred (1,200) feet of any Protected Use, or freshwater well currently in use at the time a complete application for a Gas Well i I'kPermit is tiled, or within twelve hundred (1,200) feet of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures— unless the gas well drilling and production site has been approved under a iras Well Combining District pursuant to Section 35.7.16, or has met the criteria for a sConsolidation pPermit under section 35.22.4. b. Except where more stringent separation distances are specified, the minimum separation distance between a Drilling and Production Site subject to this subsection and all other habitable structures other than those listed in 35.22.5.A. La, shall be five hundred (500) feet. c. The minimum separation requirement established in 35.22.5.AA2.a above may be reduced via the granting of a variance by the Zoning Board of Adjustment. Except that the Zoning Board of Adjustment shall not reduce the minimum separation distance any less than five hundred (500) feet. In the case where the habitable structure is an industrial use_ the minimum separation distance may be reduced to not less than two hundred fifty (250) feet if the owner of the industrial use consents to the reduction in a notarized written waiver. ed. Separation distances shall be measured from the boundary of the Drilling and Production Site identified on the Gas Well Development Site Plan, in a straight line, without regard to intervening structures or objects, to the closest exterior point of any structure occupied by a Protected Use, or freshwater well currently in use at the time a complete application for a Preliminary Gas wWell JQevelopment sSite pPlan is filed, or the closest lot line of any undeveloped Protected Use lot within a propose— €e. The separation standards of this section apply to a site containing a compressor station. Formatted: Indent: Left: 0.75 ", Hanging: 2. Oft-Reverse Setbacks 0.25 ", Tab stops: 1 ", Left a. A reverse setback is the distance that a ro osed use or stnrcture other than uses or structures associated with (5as well devel<apn7ent must be separated fron7 an approved Drilling and pPr<aductioll_ smote, A reverse setback is measured by the rules in Section 35.22.5.A. I .d. b. A Protected Use may not be located within six hundred (600) feet of a consolidated site established by a isas Well Con�binin 5 District or bproval <,P a c-Consolidation pPennit pursuant to Section 35.22.4. c. A Protected Use may not be located within three hundred (300) feet of all other Drrllin� and Production Sites, provided that the Protected Use is not served by a_ freshwater well that is located within twelve hundred (1 200) feet of the dDrrlling and Production sSite. d. All other habitable stnrctores may be located within the distance prescribed by the Fire Cade from the dDrillinu and pProduction sSite. B. Prohibited or Restricted Locations Uses and Activities I No 5as well drilling and production sites are allowed in the I'FN1A designated one hundred (100wear flaodway A Drilling and Production Site is not allowed within one thousand two hundred (1,200) feet of the flood pool elevation of Lake Ray R<,berts or Lake Lewisville except a on approval <,P a Specific Use Permit. 2. No ,has well drilling and production sites shall be allowed on slo s greater than ten (10) percent. Formatted. Font: Not Bold ---------------------------------------------------------------- Formatted: Font: Not Bold 3. Location of a pas well drilling and production site in a I'FNIA- designated flood frin 5e area or in another I SA designated on the neap adopted by the City requires approval of a watershed permit suboject to the�reguirements of section 35.22.6. No [F Font: Not Bold st fnnue or other FSA except in accordance with Subsection 35.22.6.D.5.a. 4 Na was well drilling and production site shall be located within any of the streets or alleys oP the City or streets or alleys shown by the current Denton Plan. No street shall be blocked or encumbered or closed due to anv exploration, drillin((, or_production activities unless prior consent. is obtained fron7. the Cit 1Vlana�5cr, and then only temporarily. 5. Nothint in this Section is intended to prevent an operator from drillin( directionally to reach a target or bottom hole that is located beneath a prohibited or restricted site Gas wells may have a target k�catian or bottom -hole krcatian that is under the floodway an ESA or within one thousand two hundred (1,200 feet of the flood pool elevation of lake lay Roberts or bake Lewisville when the (5as well is drilled directionally from. a location outside stroll areas. 6. No refinin3 process, or anNprocess for the extraction of products from gas. shall be carried on at a DrillinG and Production Site, except that a dehydrator and separator may be maintained on a Drilling and Production Site for the separation Of liquids from asAny such dehydrator or separator may serve more than one well. Gas ProcessinG Facilities shall require a Specific Use Permit. 7. No person shall place deposit, or discharge {or cause or allow to be placed, posited, or discllar) any oil, naphtha, petroleum, diesel, gasoline, as 1Lr 1rlt� tar, h ydrocarbon substance, or any refuse, including wastewater or brine from arty &! operation or the contents of any container used in connection with any (Yas operation in, int<a, or upon any public right -of=way, storm drain, ditch or sewer, sanitary drain or sewer, any body of water, or any private propc,rfy within the corporate limits <rf the City <rPI)enton. 8. No Operator shall excavate or constnrct any lines f <rr the conveyance <af fuel, water, or minerals on under, or through the streets or alleys or other land of the City without an easement or ri(5ht -of =way license from the City, at a price to be creed upon, and then only in strict compliance with this Subcllaptc,r, with other ordinances of the Citv. and with the specifications established by the En(5ineerin(5 Iartment. 3, I he di€€ ur7. breal�in€ excav mint , tunnelin ;t, undermrmnt , breakin€ ur7. car Formatted: Font: +Body, 11 pt, Font color: 1 darnavrn s of an pUblic street or leaven pop anKpUbhc Street any earth or other Auto, Border:: (No border) J materials is prohibited. Construction activities or deposition of any materials or objects creating an obstruction within limits of public right -of -way or easements are prohibited unless the Operator bas first obtained written approval from the En sineering Department and if ap rlicable, has filed a r. uht- of-way use agreement, and then only if in compliance with specifications established by the Department. 10. Formatted: Indent: Lett: o.s ", Hanging: 0.5^ flurds or for storage or disposal of oil and was wastes 11. No Class II infection wells shall be located within the City of Denton. [Formatted: Indent: Left: 0.5 ", Hanging: 0.5 ", .C. Site Layout and Desion I2eguit ements. The following requirements apply only within Tab stops: 1 ", Left J City limits. Formatted: Indent: Hanging: 0.5 ", Tab stops: 1 Not at 0.75' J a- 1 Entrance irate and Lighting An entrance gate shall be required. Street lighting- - � Formatted: Indent: Left: 0.5, Tab stops: Not shall be required pursuant to Section 26 -76 of the Utility Code of the Code of the City at I" of Denton, Texas or the sign identifying the entrance to the drill site or operation site shall be reflective. Directional lighting shall be provided for the safety of gas well drilling, com letion and production operations and shall be installed and operated in a 1 {rshion designed to distarb adjacent devel<rpments in the least possible manner. a Formatted: Indent: Hanging: 0.25' 43---2. Fencing and Landscapiny_ Fencing, buffering, landscaping and screening shall be- Formatted: Indent: Lett: 0.5', Tab stops: Not required on Drilling and Production Sites. All required fencing, landscaping, at I" buffering and screening must be installed in accordance with the approved Landscape Plan within one - hundred and eighty (180) days after initial drilling of the first approved well. Landscaping and screening shall also be required for sites for Compressor Stations. Landscaping and screening shall comply with the same requirements for Drilling and Production Sites as set forth in this Subchapter and in the DDC. Should the Operator decide to fence in gathering and transmission lines or compressor stations, or both, Operator shall install the fencing in accordance with Subchapter 13 of the DDC. - Formatted Indent Hanging 0 25 IN dA sien shall be immediately and prominently displayed at the gate of the tem orary and permanent Drilling and Production Site. Such sign shall be made of durable material and shall be maintained in good condition The sign shall have a surface area of not less than scivare feet or mare than scluare feet and shall be lettered in minimum -inch lettering and shall include the lcrllcrwin� infarmatian i. A statement identifying that there is /are gas well(s) at the Drilling and Production Site, together with the Well Identification Number (l, American Petroleum Institute well numbers) and any ether well desionatian(s) required by the ITC; ii. Name of Operator; iii. Operator's telephone number; iv. Operator's business mailing address; v Address of Drilling and Production Site- vi. 'The number Lor iner-enc �servic�esl) I 11; vii. Telephone numbers of two persons responsible �for t�hewell who may contacted 24 hours -a- day -in- case -of an emergency- and ,—_— viii.A statement that reads as follows: "This site may be tl7e subject <,P firrther drilling and production and /or hydraulic fracturing." Further, if the Drilling and Production Site has been approved as a Consolidated Site, then there shall be an additional statement that identifies the maximum number of authorized gas wells. ix. The telephone number of the City's Gas Well Division for citizens to call with questions, concerns or complaints. ------------------------------------------------------------------------------------------------- For List Paragraph, Tab stops: Not at e 1 shall be fear inches in height and shall be red on white background or white on red background notification numbers of the City the Operator, well and lease desrgrratrons reduired by the PI C. - - - Formatted: Indent: Left: 0.5", Hanging: l €----4. Nintino. All installed, mounted, and/or permanent equipment on Drilling and- Production Sites shall be coated, painted, and maintained at all times, including the Formatted: Indent: Left: 0.5", Tab stops: Not wellhead, gas processing units, pumping units, storage tanks, above-ground pipeline at 1" appurtenances, buildings, and structures, in accordance with applicable guidelines adopted by The Society for Protective Coatings (SSPC). In addition, the following standards are applicable: 4 - t d: Indent: Left: 0.5", Hanging: ia. Protective coatings and paints shall comply with any applicable State or City.- oF7`rae stops: Not at 1" _ I I requirements. In absence of any such requirement, protective coatings and paints Formatted: Indent: Left: 0.75" shall be of a neutral color that is compatible with the surrounding environment. Formatted: Indent: Hanging: 0.25", Tab stops: Not at 1" iib. All exposed surfaces of the identified equipment must be coated and painted, ands Formatted: Indent: Left: 0.75" free from rust, blisters, stains, or other defects. Formatted: Indent: Left: 0.5 ", Hanging: Electric Lines. All electric lines to production facilities shall be located in 0.25 , Tab stops: Not at 1" Formatted: manner compatible to those already installed in the surrounding areas or subdivision. at 1" d: Indent: Left: 0.5 ", Tab stops: Not -0-.0215" 1 tt1FI ( 1 lktt -pkli r I 5 Han atted. Indent. Left. 0. Hang in: • in c i-cr° ° "vrrei° ... "`!. ,•iii;- c'= s°r`rc°a -'rc f..r< ,! ;tri-, tl���,�, ;4 -. ,•iri. rri'ru- e°c�`i= y'— enc°�'r11- b l�. !` s- �i�ro�c -�irr�-ur"s�n¢c= �r'?iziY -tJ .. ••� 4: ']ri- io- r�3`�6lrcitic— f; 3C � }1kYi'-i�kcYi1- -E13=illfii�;- EYE- �iFE➢ �k§ ��1cYi1-- t$ ��k�k�] i�(;, �. �s-- �§ ii�lf?' �sEs --�?FtE:-Y�-�Ei}.s " "cai --is cr >�liiE?4�- -�}�% odecorative masonry fence tthat shall be no less than ehght (8) feet in height. with an opaque - Formatted: - Indent:- -Left: 0.5 ", Tab stops: Not a Formatted: Indent: Left: 0.5 ", Hanging: ia. In lieu of this requirement, an alternative fence that is compatible with the 0.25 ", Tab stops: Not at 1" area surrounding the Drilling and /or Production Site may be approved by the Director of Planning and Development. Formatted: Indent: Left: 0.75 ", Hanging: -0-.2-5 2 ------------------------------------------------------------------------------------------------------------------- ----- 4b. Required fencing must be located within three hundred (300) feet of ally - -- Formatted: Indent: Left: 0.75", Hanging: equipment necessitating fencing requirements under this Subchapter. 0.25", Tab stops: Not at 1" 7. Lift Formatted: Indent: Hanging: 0.25", Tab stops: Not at 1" Formatted: Indent: Left: 0.5", Hanging: 0.25", Tab stops: Not at 1" Formatted: Indent: Left: 0.75" Formatted: Indent: Left: 0.75 ... . . First - line: 0 ", ------ (+--Any lift compressor which is installed within an approved Drilling and Production' [-Tab stops: Not at 0.69" ] Site shall be located at least twenty-four (24) feet from the outer boundary of the site. 8. Storage d'anks and Separators. ------------------------------ a. A e equipment and- 1-Formatted:Tab- stops: Not ----------- separation Development Site Plan except that permanent storage equipment and separation equipment maw MC=Q�edel lu �8fect LuIllel 1�11t [Formatted: Tab stops: 1.5", Left + Not atl"_-] --- ------ ------- --- - ---- __ __ b. The USC ot'centralized tank batteries is permitted as shown on the� a �ilica�ble(jas- -[Formatted: Tab stops: Not at 1 --------------------------------- Well Develo Enlent Site Plan. ----- - - - -- - --- - ------- - 0.5 ", --- -- ---- ----- ---- ----- - Formatted: ---I-n-d-e-nt-: -- Left-: - - - --Tab --stops-:-- No - t 9. Trash Locations. at 1" removed to a distance of at least 150 feet from the vicinity of any well tank or pump Formatted: Indent: Left: 0.5", Hanging: Station. 0.25", Tab stops: Not at 0.75" ------------------ D. Site Development �,Standards -- -------- -- -------- ---- ---- - -- - --- - --- ----- - --- ---- - - 1. Hydraulic Fracturingy. Commencing on the January 15, 2013, except as provided- � „Not atted: Indent: Hanging: O.5",Tabstops: in sub-paragraph (v) of this section, for each well completion operation with at 0.75” hydraulic fracturing: ia. For the duration of flowback, recovered liquids shall be routed into one or more storage vessels or re-injected into the Well or another Well, and the recovered gas shall be routed into a gas flow line or collection system, re- injected into the Well or another Well, used as an on-site fuel source, or used for another useful purpose that a purchased fuel or raw material would serve, with no direct release to the atmosphere. If this is infeasible, the requirements in sub-paragraph (imii�e) of this paragraph shall be followed. iib. All salable quality gas shall be routed to the gas flow line as soon as practicable. In cases where flowback emissions cannot be directed to the flow line, the requirements in sub - paragraph ( c) of this section shall be followed. im4e. Flowback emissions shall be captured and directed to a completion combustion device, except in conditions that may result in a fire hazard or explosion, or where high heat emissions from a completion combustion device may negatively impact waterways. Completion combustion devices must be equipped with a reliable continuous ignition source over the duration of flowback. mod. Releases to the atmosphere during flowback and subsequent recovery shall be minimized. tee. The requirements of sub - paragraphs (ia) and ( b) shall not apply to: 44. Each well completion operation with hydraulic fracturing at a gas well meeting the criteria for wildcat or delineation well. -2ii. Each well completion operation with hydraulic fracturing at a gas well meeting the criteria for non - wildcat low pressure gas well or non - delineation low pressure gas well. — Formatted: Tab stops: Not at 0.69" + 1.25" 1 rr + 1.5" J Formatted: Indent: Hanging: 0.5 ", Tab stops: l Not at 0.75" + 1" + 1.25" + 1.5" J `soil Sampling Soil sampling shall be required for all new Drilling and Production Sites. Soil sampling shall be subject to the following requirements: i- a_ Upon application for an Oil and Gas Well Permit, soil sampling shall be-- -- Formatted: Indent: Left: 1 ", Hanging: 0.25 ", conducted prior to the commencement of any drilling at the proposed Drilling _No bullets or numbering and Production Site to establish a baseline study of site conditions. A minimum of one soil sample shall be taken at the location of any proposed equipment to be utilized at the Drilling and Production Site to document existing conditions at the Drilling and Production Site. - — Formatted: Indent: Left: 1 ", Hanging: 0.25" ii - b. A licensed third party consultant shall be utilized to collect and analyze all- -� Formatted: Indent: Left: 1 ", Hanging: 0.25 ", pre - drilling and post - drilling soil analyses. The cost of such consultant shall No bullets or numbering be borne by the Operator. ( Formatted: Indent: Left: 1 ", Hanging: 0.25" iii- c_ Soil samples must be collected and analyzed utilizing proper sampling and- Formatted Indent: Left: 1 ", Hanging: 0.25 ", laboratory protocol from a United States Environmental Protection Agency or _No bullets or numbering Texas Commission on Environmental Quality approved laboratory. The results of the analyses will be addressed to the City and a copy of the report shall be provided to the Operator and surface estate owner. The analyses will include the following analyses at a minimum: TPH, VOCs, SVOCs, Chloride, Barium, Chromium and Ethylene Glycol. TM -- (Formatted: Indent: Left: 1 ", Hanging: 0.25" i;,- d. Post- drilling soil samples shall be collected and analyzed after the - - Formatted: Indent: Lett: 1 ", Hanging: 0.25 conclusion of drilling of each well. Subsequent to the drilling of each well, IN. bullets or numbering periodic soil samples shall be taken as determined by the Oil and Gas Inspector during inspection events to document soil quality data at the Drilling and Production Site. Samples shall include, but not be limited to, areas where removed equipment was located. Results of the analyses shall be provided as described in Subsection AI�.2.f} iiic. - - - Formatted: Indent: Left: 1 ", Hanging: 0.25' e_ Whenever abandonment occurs pursuant to the requirements of the RRC- Formatted: Indent: Left: 1 ", Hanging: 0.25', and as referenced in 35.22.5. -F' 9, the Operator so abandoning shall No bullets or numbering conduct post production soil sampling within three (3) days after equipment has been removed from the Drilling and Production Site to document that the final conditions are within regulatory requirements. Results of the analyses shall be provided as described in Subsection A.2.t.+i --cam ff. If any soil sample results reveal contamination levels that exceed the- -� Formatted: Indent: Left: 1 ", Hanging: 0.25', minimum state or federal regulatory levels, the City shall submit the soil No bullets or numbering sample results to the appropriate state or federal regulatory agency for enforcement. --- -[For Indent: Left: 1 ", Hanging: 0.25' 3. Pits. All pits shall be lined Ind shall be desi ne constructed, and installed in accordance with the liner standards set forth by the RRC. Any new Drillin, in Production Sites Dronosed alter January 15. 2013 shall utilve a closed -loop mud system. The following additional standards shall ap ly to pits within a Drilling and Production Site. - -- -- a. The type of pit used in drilhi operations shall be specified at the time Of Formatted: Indent: Left: 0.75 ", Tab stops; permitting. The Oil and i�as Inspector may perform a contamination assessment Notat 1.25' for any reserve pit completion /work -over pit. drillil U fluid disposal pit. fresh makeup water pit. mud circulation pit, washout pit, or water condensate pit. The following concentrations for contaminants will be used to determine if contamination exists within any materials in the pits: - Formatted: Indent: Left: 0.75' Compound Concentration limit TPH 1 S m�L BTEX 500 u /L Benzene 50 L1 t /L It" concentrations exceedinIcy these values are detected the operator shall rcrnovc cause to be removed or otherwise remediate contaminants to below the limits provided herein. cleanup operations shall begin irninediately. cleanup activities that do not begin within twenty -four (24'D hours of notitication b' the oil and gas inspector shall be considered a violation of this Subchapter. b. 01 freshwater -based mud systems shall be permitted. Saltwater -based niud° — Formatted: Indent: Left: 0.75', Tab stops: systems and oil based nnid sy_stc ms are nrohibiteCi. 1 ", Left + Not at 1.25 Ti1C C7it and it�a contents sha11 be removed from the nrerrnses within nmetV i9O)- — Formatted: Indent: Left: 0.75', Tab stops: dais after completion of the drilling of a well provided, however, that the 1 ", Left + Not at 1.25' permittee mad ap 1y for a ninety '9( D -dad extension from such re mirennents based on showing ood cause, necessity to maintain said pit. inclement weather. or other factors. The fit maw 3nate a period of time shorter than the nine (90) -day extension set out herein. h.- A11 nits shall be bacicfilled in accordance with the f0110winIcy schedule. The.- Tab stops: 1 ", Left Director of Planning and Development ruall permission for a it to remain at the site if the surface property owner submits a written request. L) Deserve pits and mud circulation pits shall be dewatered within 30 days and bacicfilled and compacted within ninety (()0) days of cessation of drilling activities. (ii) All completion /w<rrkover nits used when completin(� a well shall be dewatered within thirty (30) days and bacicfilled and compacted within one hundred and twenty (120) days of well completion. 10 - - - Formatted: Indent: Hanging: 0.25', Tab c. Chloride content of fluids held in pits inav not exceed three thousand Qadl � stops: 1 ", Left --- _ mi11i romper liter. Formatted: Indent: Left: 0.75', Tab stops: 1 ", Left + Not at 1.25' d. No metal additives ma be added to any drillin s fluids. Formatted: Indent: Hanging: 0.25, Tab stops: 1 ", Left Formatted: Indent: Hanging: 0.25', Tab e. All fluid pr<rduced Pram the well during eLrmpletion of production shall be held in �� stops: 1 ", Left + Not at l.zs" enclosed containers while stored on the rtyperty_ Formatted: Indent: Hanging: 0.25', Tab stops: 1 ", Left f All fluids shall be removed (` "de- watering` ") from the pits within thirty (30 da s <,Pcompletion <,Pdrillin�� operations. Ti1C C7it and it�a contents sha11 be removed from the nrerrnses within nmetV i9O)- — Formatted: Indent: Left: 0.75', Tab stops: dais after completion of the drilling of a well provided, however, that the 1 ", Left + Not at 1.25' permittee mad ap 1y for a ninety '9( D -dad extension from such re mirennents based on showing ood cause, necessity to maintain said pit. inclement weather. or other factors. The fit maw 3nate a period of time shorter than the nine (90) -day extension set out herein. h.- A11 nits shall be bacicfilled in accordance with the f0110winIcy schedule. The.- Tab stops: 1 ", Left Director of Planning and Development ruall permission for a it to remain at the site if the surface property owner submits a written request. L) Deserve pits and mud circulation pits shall be dewatered within 30 days and bacicfilled and compacted within ninety (()0) days of cessation of drilling activities. (ii) All completion /w<rrkover nits used when completin(� a well shall be dewatered within thirty (30) days and bacicfilled and compacted within one hundred and twenty (120) days of well completion. 10 (iii)-All -�Allcorn �Ictiou�/workov�cr pits used when working over a well shall be dewatered within hundred and twenty L 12(j) rn days s of completion of re--work operations. - ---- ---- ------------- (iv) -Basic sediment nits, dare nits, fresh mining water pits, and water condensate pits shall be dewatered, backfilled, and compacted within one hundred and LwentLLI 20jdas of final cessation ofuse of _theits, . i. Each operator Must Submit to the City a water conservation plan for uses of water.' FFormatted: - a b Not - at 5 ---------------------- The plan I-LIUst provide information in response to each of the R-)Iiowln I Leicnicn�ts Formatted: Indent: Left: 1", Hanging: 0.31" Formatted: Indent: Left: 0.5", Hanging: 0.25", Tab stops: Not at 0.75" Opepat"" production process, includin(5 how the water is diverted and transported from the sources) Lirc the water is utili/ed M the production jn!L�, 1--cLSL-0—f1S—L,M1Y1 how —t the estimated uuantity <,l' water consumed in the production process and therefore unavailable for reuse discly,�irueor other means of disposal; (ii) If long term, five (5) to ten (10) veers, water stara�e is anticipated, quantified five -veer and ten -veer t <u ets l <rr water savings and the basis for the develornent of such --goals; (iii) A descrlstion <,l'the devices) and /or methods) within an accuracy <,l' lus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of sanely; �Llv ter distribution sy-stein pp �ecL� (v) A hcation of state -of- the -art ui inept and /or process modifications to Formatted: Font: Not Bold improve watei use et1'iciency___ _____end Vi which the user* Formatted: Tab stops: Not at 1.25Y" ------------------------- . . . . . .................... .................... shows to be appropriate for achieving the state d goal or goals of the water conservation �Ian. - - ------------------------------------------------------------------------------------------------------------------- 4. Erosion and Sediment Controls. Erosion and sediment practices shall be conducted for all ZL is wells. The Operator shall comply with the Erosion and __— I Sediment Control Plan as approved Lb by City.s :gym: Formatted: Indent: Left: 0.5", Hanging: 0.5", Tab stops: Not at 1.25" Formatted: Font: Not Bold ------------------------- E. Operations and EqRjED12RI� _� The following requirements apply only I Indent: Left: 6;; within City limits. Hanging: 0.5", No bullets or numbering, Tab � stops: Not at0.75 - ----------------------------- .... IN *--1. Nuisances. Adequate nuisance prevention measures shall betaken to prevent or* Formatted: Indent: Lett: 0.5 ", Tab stops: Not control offensive odor, fumes, dust, noise and vibration. [at 1" 2. Vapor RecOVe1V Umts. Formatted: Indent: Hanging: 0.25 ", Tab stops Not at 1" a. Va - f)r reGl)Ver� C,<1u1 Jment 1S TE,Cjulred for facilities not included tinder Rule � Formatted: Indent: Left: 0.5 ", Hanging: 0.25 ", Tab stops: Not at 1" X106.352 of TAC title 30, Pa1-t I, Chapter 106, Subchapter O; or its successor regulation. b. An Operator shall notify the Oil and Gas Inspector within two (2D days after the- - Formatted: indent: Left: 0.75" tirst sale of gas t'rom a well. - Formatted: Indent: Left: 0.75 ", First line: 0 ", 1 Tab stops: Not at 0.69" J e--3. Compliance with Rules and Reuulations. The Operator shall at all times comply - with the applicable rules and regulations of the RRC including but not limited to all applicable Field Rules. s w-, f He-`s s 4.11,,,, *. � rYa�" cklcla�lir 4:, = ,. =1 =.xIf -`== "cifcrr -ic = r' "'.rrcri'c`ri- t-4. Debris. The Drilline and Production Site and site access road shall at all times be kept free <,P debris, pools <,P water or other liquids, contaminated soil, weeds, bnrsh, trash or other waste material outside the Drillin- and Production Site Formatted: Indent: Left: 0.5 ", Tab stops: Not at 1" Formatted: Indent: Left: 0.75 ", Hanging: 0.25 ", Tab stops: 1 ", Left 5 Ventin, and Flaring There shall be no venting or flaring of gases in residential areas- - -- Formatted: Indent: Left: 0.5" except as allowed by the RRC or TCEQ. If venting or flaring is allowed by the RRC or TCEQ, a permit must be obtained from the Fire Marshal in accordance with the Fire Code. Further, the venting or flaring_activities shall not be located closer than twelve hundred (1,200) feet from any Protected Use, unless: (1) a setback variance has been granted pursuant to 35.22.5; or (2) if practical and if approved by the City Fire Marshal, ground flaring that is wholly enclosed or screened with a masonry wall. Except in the case of an emer�ency, was well flaring shall anly be conducted during day -time hours.. a - ( Formatted: Indent: Hanging: 0.25" €- 6. Vehicle Placement. Vehicles, equipment, and machinery shall not be placed or* Formatted: Indent: Left: 0.5 ", Tab stops: Not located on a Drilling and Production Site (or on any public street, alley, driveway, or at 1" other public right -of -way) in such a way as to constitute a fire hazard or to unreasonably obstruct or interfere with fighting or controlling fires. - Formatted: Indent: Hanging: 0.25" 12 �. -44 rl R4 t+re -4, H , - F- h. a �; g7 dime of F'racturin� Fracturing operation shall be scheduled to occur- [at Formatted: Indent: Left: 0.5 Tab stops: Not during daylight hours unless the Operator has notified the Oil and Gas Inspector that 1" tracing will occur before or after daylight hours to meet safety requirements. ^�- -- Formatted: Indent: Hanging: 0.25" i- € Pneumatic Drilling Pneumatic drilling shall not be permitted. Formatted Indent: Left 0.5", Hanging: 0.25", No bullets or numbering, Tab stops: Not at 1" — l2ertuit ements. The nrovlslons of thls section shall annly wlthln the eornorate 11m1t5 of the City of Denton. Formatted Indent: ,Left 0 5" -- Formatted: Indent: Left: 0 ", Hanging: 0.5 ", Tab stops: Not at t: Le q1. the drilhnp and Tip {Formatted: Font: Not sold accessing the Drilling and Production Site 4 g- 114 e rfi+ r � ifleshall be in compliance with - -I all state and federal environmental re (yulations 2. Gathering Lines a. Each Operator shall place pipeline marker sign at each point where a flow line or gathering line crosses a public street or road. b. Each Operator shall place a warning sign for lines carrying H2S (Hydrogen Sulfide) gas as required by the Railroad Commission. 13 Formatted: Indent: Left: 0.5 ", Tab stops: Not at 1" a Formatted: Indent: Left: 0.75 ", Hanging: 0.25 ", Tab stops: 1 ", Left Formatted: Indent: Hanging: 0.25" Formatted: Tab stops: 1.25 ", Left + Not at 1" Formatted: Indent: Left: 0.75 ", Hanging: 0.25 ", Tab stops: 1.25 ", Left Formatted: Tab stops: 1.25 ", Left + Not at 1" Formatted: Indent: Left: 0.75 ", Hanging 0.25 ", Tab stops: 1.25 ", Left c. All flow lines and gathering lines within the corporate limits of the City ---[ Formatted: Tab stops: Not at 1" (excluding City utility lines and franchise distribution systems) that are used to transport oil, gas, and /or water shall be limited to the maximum allowable operating pressure applicable to the pipes installed and shall be installed with at least the minimum cover or backfill specified by the American National Safety Institute Code, as amended. Formatted: Indent: Left: 0.5 ", Hanging: c�T. . ". �peratln hTeSSnre. 0.25" - - - - --- -_-- " Formatted: Indent: Left: 0 ", Hanging: 0.5 , Tab stops: Not at 0.75" fr€���� -5-F1 ,1, °a ra„1r ra�uro,arf - T„�, T rrxvvxila rrll � ,-- ,a °l�!� -1-s- mill€ -�l 4- --Each well shall be equipped with an automated valve that closes the well in the event- - -- Formatted: Indent: Left: 0.5 ", !tt� of an abnormal change in operating press ure. All wellheads shall contain an at 1" ------------------------------------------------------------------------emergency shut off valve to the well distribution line. e--4. Control Device. Each storage tank shall be equipped with a level control device that will automatically activate a valve to close the well in the event of excess liquid accumulation in the tank. f5. Stora;?e d'anks. a. All storage tanks shall be anchored for stability. Formatted: Indent: Left: 0.75 , Hanging: -, 0.25 ", Tab stops: Not at 1" g b -As required by the Fire Code, all storage tanks shall be equipped with- �4 Indent: Left: 0.75 ", Hanging: I_ either steel or concrete secondary containment systems including lining with an 0.25" Tab stops_ Not at r' j impervious material. The secondary containment system shall be of a sufficient _Formatted: -- height to contain one and one -half (I /z) times the contents of the largest tank in accordance with the Fire Code. Drip pots shall be provided at pump out connections to contain the liquids from the storage tank. 14 4--6 Outdoor Storage Areas Outside storage areas shall be equipped with a secondary- [at Formatted: Indent: Lett: 0.5 ", Tab stops: Not containment system designed to contain a spill from the largest individual vessel. If 1" the area is open to rainfall, secondary containment shall be designed to include the volume of a twenty -four (24) -hour rainfall as determined by a twenty -five (25) -year storm and provisions shall be made to drain accumulations of ground water and rainfall. -- — Formatted: Indent: Hanging: 0.25' i- 7. Liohting System. Drilling and Production Sites shall be equipped with a- - —�at Formatted: Indent: Lett: 0.5, Tab stops: Not lightning protection system, in accordance with the City's Fire Code and the National 1" Fire Association's NFPA -780. In addition, tank battery facilities shall be equipped with a remote foam line and a lightning arrestor system. - Formatted Indent Hanging 0 25 8 Hazardorus Materials Managernent Plan A Hazardous Materials Management -[at Formatted: Indent: Lett o.5, Tab stops: Not Plan shall be on file with the Fire Marshal. Any updates or changes to this plan shall 1" be provided to the Fire Marshal within three (3) working days of the change. All chemicals and /or hazardous materials shall be stored in such a manner as to prevent, contain, and facilitate rapid remediation and cleanup of any accidental spill, leak, or discharge of a hazardous material. Operator shall have all material safety data sheets (MSDSs) for all hazardous materials on site. All applicable federal and state regulatory requirements for the proper labeling of containers shall be followed. Appropriate pollution prevention actions shall be required and include, but are not limited to, chemical and materials raised from the ground (e.g., wooden pallets), bulk storage, installation and maintenance of secondary containment systems, and protection from storm water and weather elements. Abandoned bw Formatted: Indent: Lett: os ", Tab stops• Not accordance with of thellRRC�l however�all ll casings shalabandoned b eout and lat 1 removed to a depth of at least ten (10) feet below the surface unless the surface owner submits a written agreement otherwise. Three (3) feet shall be the minimum depth. Alter the well has been ged and abandoned, the Operator shall clean and rear all damage to public proper caused by such operations within thirty (30 da s. In addition, the Operator shall: ia. Submit a copy of its RRC Form W -3A (Notice of Intention to Plug and- Formatted: Indent: Lett: 0.75 ", Tab stops; Abandon) and Form W -3 (Plugging Record) to the Inspector within two (2) Not at 1.25' business days of filing with the RRC; iib. Notify the Oil and Gas Inspector of the intention to plug and abandon a well at least twenty -four (24) hour prior to commencing activities; and ii-ic. Submit to the Oil and Gas Inspector the surface hole locations in an acceptable Geographic Information System (GIS) format to accurately map and track well locations. The GIS data may be submitted with an initial Gas Well Permit application or with the annual administrative report. Submission of GIS location data is only required once. 15 mod. Submit a copy of a soil sampling analysis as required by Subsection 35.22.5.AD.2 -q . 10. (----Reclamation Plan. Operators must close each Drilling and Production Site in a- —[at Formatted: Indent: Lett: 0.5 ", Tab stops: Not manner that minimizes the need for care after closure. To achieve this requirement, 1" the site shall be reclaimed to the condition identified on the Site Reclamation Plan, as nearly as practicable. In the event development encroaches up to the property after drilling and production activities, a reasonable rehabilitation alternative may be approved by the City to ensure the reclaimed site is compatible with the surrounding properties. a'rr ---i m-- ^zi- .s- '3a'-c:rY- aizxr- ci�^YCfcrc.r iz- t�'Y1- 1�t-- q--12. Pit Fencing. For safety reasons, fencing shall be installed to restrict access to a4 Formatted: Indent: Lett: 0.5 ", Tab stops: Not reserve pit or other type of open pit utilized in gas well drilling operation at a drill site at 1" within the corporate limits of the City. f-.-- 13. Catchment Basins. Drip pans, catchment basins and other secondary containment devices or oil absorbing materials shall be placed or installed underneath all tanks, containers, pumps, lubricating oil systems, engines, fuel and chemical storage tanks, system valves, connections, and any other areas or structures that could potential leak, discharge, or otherwise spill hazardous or solid materials. . — 14. Clean -up After Completion. After the well has been completed; "F g , - 1d- ie4;_ the Operator shall clean and repair all damage to public property caused by such operations within thirty (30) days. 4-- 15. Clean -up Operations. After any spill, leak or discharge, the Operator shall remove - or cause to be removed all contamination and associated waste materials. Clean -up operations shall begin immediately. 16 Formatted: Indent: Hanging: 0.25" Formatted: Indent: Left: 0.5 ", Tab stops: Not at 1" - - -- -- -- -- -- -- - - -- - - - -- - - -- -- - -- - -- - - -- - - - -- --------------- - - - -- Formatted: Indent: Hanging: 0.25" Formatted: Indent: Left: 0.5 ", Tab stops: Not at 1" a Formatted: Indent: Hanging: 0.25 ", Pattern: Clear ------------------------------------------------------------------------------------------------- Formatted: Indent: Left: 0.75", Tab stops: Not at 1.25" . - - - { Formatted: Indent: Left: 0.75" 1 ------------------------- ---------------------------------------------------------------------- Formatted: Indent: Left: 0.75", Tab stops: 4r, 1", Left + Not at 1.25" j 17 b Formatted: Indent: Left: 0.75 ", Tab stops: J 1 ", Left + Not at 1.25" Formatted: Tab stops: 1 ", Left „- '! -. ,! zi�k:Fktk4.s- ;'kfi-th1?.'�2-$� .i -cam" c�-- crziciccxxrccrcc rsr- fi$3E" s—t s—� arsgrc ovrlras¢rc b .r- 'sYcc°crl car'ia- }ri'rc- c�`rzc"c`i "rsr , "Formatted: Tab stops: Not at 0.75" Formatted: Indent: Left: 1 ", Hanging: 0.31" i16. Water Conservation flan. Each operator must submit to the C ity a water uoselvatlon plan for uses of water.fhe plan must provide information in response to each of the l<rllowinu elements a the use of the water in the lis- Indent: Left: 0--.-75- .75 ", Tab stops; water is transported from the sour e(s) of supply,rhowdthe water Not at 1.25" 1.25 utilized in the production process, and the estimated quantity of water consumed in the production process and therefore unavailable for reuse, discharge, or other means of disposal; iib. If long -term, five (5) to ten (10) years, water storage is anticipated, quantified five -year and ten -year targets for water savings and the basis for the development of such goals; 18 im4c. A description of the device(s) and /or method(s) within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply; mod. Leak- detection, repair, and accounting for water loss in the water distribution system; e. Application of state -of- the -art equipment and /or process modifications to improve water use efficiency; and . Formatted: Tab stops: Not at 1.25" J fiarmaned- : Indent: Left: 0.5 ", Han 9: in 0.5 Tab stops: Not at 1.25" 9� J a �it --�, _Pef+atc+F_�_,C+ ��L��4_ r�., 'ern" i '. 19 35.22.9. - Indemnification and Insurance. A. Indemnification and Express Negligence Provisions. 1. Each Gas Well Permit issued by the City shall include the following language: OPERATOR DOES HEREBY EXPRESSLY RELEASE AND DISCHARGE ALL CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, AND EXECUTIONS WHICH IT EVER HAD, OR NOW HAS OR MAY HAVE, OR ASSIGNS MAY HAVE, OR CLAIM TO HAVE, AGAINST THE CITY OF DENTON, AND /OR ITS DEPARTMENTS, AGENTS, OFFICERS, SERVANTS, SUCCESSORS, ASSIGNS, SPONSORS, VOLUNTEERS, OR EMPLOYEES (COLLECTIVELY REFERRED TO AS THE "INDEMNIFIED PARTIES"), RELATING TO OR ARISING OUT OF BODILY INJURY, KNOWN OR UNKNOWN, AND INJURY TO PROPERTY, REAL OR PERSONAL, OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION WITH THE PERFORMANCE OF THE WORK PERFORMED BY THE OPERATOR UNDER A GAS WELL PERMIT. TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR SHALL DEFEND, PROTECT, INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST EACH AND EVERY CLAIM, DEMAND, OR CAUSE OF ACTION AND ANY AND ALL LIABILITY, DAMAGES, OBLIGATIONS, JUDGMENTS, LOSSES, FINES, PENALTIES, COSTS, FEES, AND EXPENSES INCURRED IN DEFENSE OF THE INDEMNIFIED PARTIES, INCLUDING, WITHOUT LIMITATION, BODILY INJURY AND DEATH IN CONNECTION THEREWITH WHICH MAY BE MADE OR ASSERTED BY OPERATOR, ITS AGENTS, ASSIGNS, OR ANY THIRD PARTIES ON ACCOUNT OF, ARISING OUT OF, OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION WITH THE PERFORMANCE OF THE WORK PERFORMED BY THE OPERATOR UNDER A GAS WELL PERMIT. THE OPERATOR AGREES TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM ANY LIABILITIES OR DAMAGES SUFFERED AS A RESULT OF CLAIMS, DEMANDS, COSTS, OR JUDGMENTS AGAINST THE INDEMNIFIED PARTIES RELATING TO OR ARISING OUT OF THE ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES OCCURRING ON THE DRILLING AND PRODUCTION SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS WELLS INCLUDING, BUT NOT LIMITED TO, CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE SOLE NEGLIGENCE OF THE INDEMNIFIED PARTIES OCCURRING ON THE DRILLING AND PRODUCTION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS WELLS. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE OPERATOR TO INDEMNIFY AND PROTECT THE INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THE NEGLIGENCE OF THE INDEMNIFIED PARTIES, WHETHER THAT NEGLIGENCE IS THE SOLE CAUSE OF THE RESULTANT INJURY, DEATH, AND /OR DAMAGE. LIABILITY FOR THE SOLE NEGLIGENCE OF THE CITY IN THE COURSE AND SCOPE OF ITS DUTY TO INSPECT AND PERMIT THE GAS WELL IS LIMITED TO THE MAXIMUM AMOUNT OF RECOVERY UNDER THE TORT CLAIMS ACT. B. Insurance. 1. General Requirements. a. The Operator shall provide or cause to be provided the insurance described below for each well for which a Gas Well Permit is issued, and shall maintain such insurance until the well is abandoned and the site restored, except as otherwise required in this Section. b. Prior to issuance of the Gas Well Permit, the Operator shall furnish the City with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth in this Section. A copy of the endorsements or other policy provisions adding the City as an additional insured to the insurance policies, endorsements providing the City thirty (30) days written notice of cancellation or material change in coverage, and all waivers of subrogation shall be attached to the certificate(s) of insurance. Upon request, certified copies of the insurance policies shall be furnished to the City. The City's acceptance of documents that do not reflect the required insurance, or the City's failure to request the required insurance documents, shall not constitute a waiver of the insurance requirements set forth in this Section. c. In the event any insurance required by this Section is cancelled, the Gas Well Permit shall be suspended on the date of cancellation and the Operator's right to operate under the Gas Well Permit shall immediately cease until the Operator obtains the required insurance. d. The Operator shall provide the City thirty (30) days written notice of any cancellation, non - renewal, or material change in policy terms or coverage, and the policies shall be endorsed to provide the City such notice. Ten (10) days written notice shall be acceptable in the event of cancellation because of non - payment of premium. e. All insurance policies shall be written by an insurer authorized to do business in Texas and with companies with A: VIII or better rating in accordance with the current Best's Key Rating Guide, or with such other financially sound insurance carriers approved by the City. f All insurance policies, with the exception of the workers compensation policy, shall be endorsed to name the City, its officials, employees, agents and volunteers as additional insureds on the policies. The additional insured coverage shall apply as primary insurance with respect to any other insurance or self - insurance programs maintained by the City, its officials, employees, agents and volunteers. A copy of each endorsement shall be provided to the City as evidence of coverage. g. All insurance policies shall be endorsed with a waiver of subrogation in favor of the City, its officials, employees, agents and volunteers. A copy of each endorsement shall be provided to the City. h. All insurance policies shall be written on an occurrence basis where commercially available. i. During the term of the Gas Well Permit, the Operator shall report, in a timely manner, to the Gas Well Division any known loss or occurrence which has caused, or may in the future cause, bodily injury or property damage. 2. Required Insurance Coverages. a. Commercial General Liability Insurance. Operator shall maintain commercial general liability (CGL) insurance with a limit of not less than one million dollars ($1,000,000) each occurrence with a two million dollars ($2,000,000) aggregate. This insurance shall cover liability including, but not limited to, liability arising from premises, operations, blowout or explosion, products- completed operations, contractual liability, underground property damage, broad form property damage, and independent contractors. This insurance shall also include coverage for underground resources and equipment hazard damage. In addition to the additional insured requirements set forth above, the additional insured coverage provided to the City, its officials, employees, agents and volunteers shall include coverage for products- completed operations. b. Environmental Impairment (or Pollution Liability) Insurance. Operator shall maintain environmental impairment or pollution liability insurance with a limit of not less than five million dollars ($5,000,000). Such coverage shall not exclude damage to the lease site. If coverage is written on a claims -made basis, the Operator shall maintain continuous coverage or purchase tail coverage for four (4) years following the expiration or suspension of the Gas Well Permit, and the retroactive date(s) applicable to such coverage shall precede the date of issuance of the Gas Well Permit. Coverage shall apply to sudden and accidental, as well as gradual, pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants. c. Automobile Liability Insurance. Operator shall maintain automobile liability insurance with a limit of not less than one million dollars ($1,000,000) each accident. Such insurance shall cover liability arising out of any auto (including owned, non - owned, and hired autos). d. Worker's Compensation Insurance. Operator shall maintain workers compensation and employers liability insurance. The workers compensation limits shall be as required by statute and employers liability limits shall not be less than one million dollars $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for bodily injury by disease. e. Excess (or Umbrella) Liability Insurance. Operator shall maintain excess (or umbrella) liability insurance with a limit of not less than twenty -four million dollars ($24,000,000) per occurrence with a twenty - four million dollar ($24,000,000) aggregate. Such insurance shall be excess of the commercial general liability insurance, automobile liability insurance and employers liability insurance as specified above. f. Control of Well Insurance. Operator shall maintain control of well insurance with a limit of not less than five million dollars ($5,000,000) per occurrence. The policy shall provide coverage for the cost of controlling a well that is out of control, re- drilling or restoration expenses, seepage and pollution damage. A five hundred thousand dollars ($500,000) sub -limit endorsement may be added for damage to property for which the Operator has care, custody, and control. 35.22.8. 4 & °� 9. - Indemnification and Insurance. Formatted: Font: Not Bold, Font color: Black 4, ,, — 1�.' rf :�7 -i47 -� 1. �t p er`. -,- a�rt� Formatted: Indent:_Left: 0" VVIL r- icr- =da'-iin;i,- &- 44ft i— w A. Indemnification and Express Negligence Provisions. Each Gas Well Permit issued by the City shall include the following language Tdm 11- 21 -14 --- — Formatted: Right ------------------------ CONNECTION WITH THE PERFORMANCE OF THE WORD PERFORMED BY THE OPERATOR UNDER A GAS WELL PERMIT. TO THE FULLEST EXTENT PERMITTED BY LAW OPERATOR SHALL DEFEND PROTECT INDEMNIFY AND HOLD ((ARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST EACH AND (EVERY CLAIM DEMAND OR CAUSE OF ACTION AND ANY AND ALL LIABILITY DAiRAGES OBLIGATIONS JUDGMENTS LOSSES FINES PENALTIES COSTS FEES AND EXPENSES INCURRED IN DEFENSE OF THE INDEMNIFIED PARTIES INCLUDING WITHOUT LIMITATION BODILY INJURY AND DEATH IN CONNECTION THEREWITH WHICH MAY BE MADE OR ASSERTED BY OPERATOR ITS AGENTS ASSIGNS OR ANY THIRD PARTIES ON ACCOUNT OF ARISING OUT OF OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION WITH THE PERFORMANCE OF THE WORD PERFORMED BY THE OPERATOR UNDER A GAS WELL PERMIT. THE OPERATOR AGREES TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM ANY LIABILITIES OR DAMAGES SUFFERED AS A RESULT OF CLAIMS DEMANDS COSTS OR JUDGMENTS AGAINST THE INDEMNIFIED PARTIES RELATING TO OR ARISING OUT OF THE ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES OCCURRING ON THE DRILLING AND PRODUCTION SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS WELLS. INCLUDING, BUT NOT LIMITED TO CLAIMS AND DAMAGES Formatted: Font: Bold ARISING IN WHOLE OR IN PART FROM THE SOLE NEGLIGENCE OF THE "v �u ?'� T�'�"`�INDEMNIFIED PARTIES OCCURRING ON THE Formatted: Font: Bold I DRILLING AND PRODUCTION SITE IN THE COURSE AND SCOPE OF - --------------------------------------------------------------- Formatted: Font: Bold INSPECTING AND PERMITTING THE GAS WELLS. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE OPERATOR TO INDEMNIFY AND PROTECT THE �? "tee ";-r`,INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF Formatted:-Font-Bold THE NEGLIGENCE OF THE P- A —�^ ?` %- ' TltiD A D1 "k 4UNT'T°(,_' At!UNT'lf"(,_' £1111T1 Ti `u L) Q'U L) 'C 7 A T.T'T°' £lD '-,'INDEMNIFIED PARTIES WHETHER THAT NEGLIGENCE _ Formatted: Font: Bold IS THE SOLE—, CAUSE OF THE RESULTANT- INJURY, DEATH,- AND /OR (Formatted: Font: Bold DAMAGE. LIABILITY FOR THE SOLE NEGLIGENCE OF THE CITY IN THE COURSE AND SCOPE OF ITS DUTY TO INSPECT AND PERMIT THE GAS WELL IS LIMITED TO THE MAXIMUM AMOUNT OF RECOVERY UNDER THE TORT CLAIMS ACT. wommum 1 General R quirernenls. ar.w a 4r, a nfs r „lva-rri- irc`.i.- c�Dc- vienccz Ecii� -c}c- �dr ""'ti- rrccii- irirkGE' -- Formatted Indent Left 0", Tab stops 0 5 Left Tdm 11- 21 -14 --- - Formatted: Right ------------------------ e42- a. "d'he Operator shall provide or cause to be provided the insurance described below for each well for which a Gas Well Permit is jssLied and shall maintain such insurance until the well is abandoned and the site restored, extent as otherwise retluired in this `section. b. Prior to issuance of the Gas Well Permit the Operator shall firrnish the City with a certilicate(s) of insurance, executed by a duly authorised representative of each i set forth in this `section. A ctapy ol'the endorsements or other policy provisions addin(u the City as an additional insured to the insurance policies, endorsements providin( the City thirty(30) days written notice of cancellation or material change in coveraue, and all waivers of subrogation shall be attached to the certifcate(s) o iinsurance. U pon retiuest, certified ctapies of the insurance policies shall be furnished to the City "d'he City's acceptance of documents that do not reflect the retluired insurance, or the City'S failgre to redueSt the redgired insurance documents, shall not constitute a waiver of the insurance retiuirements set forth in this `section. C. In the event any insurance retiu:ired. by this `ection is cancelled., the Gas Well Permit shall be suspended on the date of cancellation and the Ofserator's right to tmperate under the Gas Well Permit shall immediately cease until the O erator obtains the It insurance. d. "d'he Operator shall provide the City thirty (30) days written notice of any cancellation, non - renewal, or material change in policy terms or covLrae, and the policies shall be endorsed to provide the City sash notice. d'en (I 0) days written notice shall be of premium. e. All insurance policies Shall be written by an insurer authorized to do business inQ — Formatted: Indent: Left: 0.75 ", Tab stops; Texas and with companies with A: VIII or better rating in accordance with the Not at 0.75' current 44e4,E4est'S Key Rating Guide, or with oonsJn+44e4such other financially sound insurance carriersmiz- iirP -& zaizaxcra -r it approved by the City. Formatted: Indent: Left: 0.75 ", Hanging: 4 -4a44t�-f All insurance policies--- 4i��4---, with the exception of the workers 0.25" J compensation policy, shall be endorsed to name a " it al 3ns,tar-t " the City -mil, its officials, -, -�- employees, agents and vtrlgnteers as additional insureds an the policies d'he additional insured covers 5e shall apply as primary insurance with respect to any other insurance or Self - insurance rogramS maintained by the Clty its officials, employees, agents and volunteers. Tdm 11- 21 -14 --- — Formatted: Right ------------------------ ep � n v s- - Formatted: Indent: Left: 0.75 ", Tab stops; A copy Of -a [Not at 0.75" rttla�+t t r� Ytt.� r ` reach endorsement shall 4ic4 be t» provided to the City as evidence Of coverage. Formatted: Indent: Left: 0.75 ", Hanging: All insurance policies shall be endorsed with a waiver of subra�ation in favor Of 0.25" the City, its <rllicials, empl<ryees, a 5ents and volunteers A copy <,P each endorsement shall be provided to the City. h. All insurance policies shall be written On an Occurrence basis where commercially available. i. I)rrring the term. oP the Csas Well Permit, the C)perator shall report, in a timely manner, to the Csas Well I)visiOn any known loss or Occurrence which has caused, or may in the lirttrue cause, bodily in trr Or ropert dan7 <�(�e. Formatted: Indent: Left: 0 ", Tab stops: 0.5" 2. —� _ a u i Left I--- Required Insurance Coverages. M General Liabilitv Insurance. shall- �e- r- d- �rz`°.rmrxrrcr°erci`rs's"rr _ a �- rrrn�rr- crr____ �) maintain commercial general liability (CirL) insurance with a limit Of not less than one million dollars ($1,000,000) beach occurrence t- It+rl+gwith a two million dollars ($2,000,000) a�; regate. This mil] ", insurance shall cover liability inchrdin, but not limited to, liability arising from premises, operations, blowout or explosion, products- - completed operations, met- contractual liability, underground property damage, broad form property damage, and independent contractors- pft4t�4i---,,�� lre d'his intiarance shall also inchrde covers 5e for underground resources and eduipment hazard damage. In addition to the additional insured reclrrirements set 1 <rrth above, the additional insared covers e provided to the City, its <al'licials, employees, a(5ents and vohrnteers shall inchrde coverage 1 <ar products - completed operations. b. Environmental Impairment (or - Pollution4 Liability) Insurance. Q erator shall l impairment or wtittcn— R41--- 17epollutwn liability insurance with a in4R- H+4imit of (- *ienot less than live million dollars ($4-51000,000-). Such coverage shall not exclude damage to the lease site. 4 I tirrr''�pzti -E - 1?clk>ti+�} If coverage is written on a - "claims -- made` basis, the ff4et (7 erator shall -- Formatted Indent Left 0.5", Hanging 0.215" Formatted: Font: Bold Formatted: Indent: Left: 0 ", Tab stops: 1 ", Left + Not at 0.75" Formatted: Indent: Left: 0" Formatted: Font: Bold Formatted: Font: Bold Tdm 11- 21 -14 --- - Formatted: Right ------------------------ maintain cantinuous cavera�e or purchase tail coverage for four (4) „years f <rllowing the expiration or suspension <,Pthe Csas Well Permit, and the retroactive dated applicable , �p ° +F�, ¢i*cto such coverage shall precede the date of fie-- issuance of the Gas Well Permit. Coverage shall apply to sudden and flon- %accidental as well as (Yradual pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, t +*Xie- chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants. Liabilitv Insurance. Cnerator shall maintain automobile liability insurance with a limit of not less than one million dollars 01,000,000) each accident. Such insurance shall cover liahihty ansinu out of any auto (including owned, non - owned, and hired autos). d. Worker's Comn2asation Insurance. Formatted: Indent: Left: 0 ", Tab stops: 0.5 ", Left Formatted: Font: Bold �peratCJT Shall mamtaln Wt7rherS GompenSatlC)n and emplC,yerS hablhty 1nsU:ranGe.' — {Formatted: Indent:-Left: 0.5 ",- Hanging: -O.5" The workers compensation limits shall be as required by statute and em 1<rycrs liability limits shall not be less than one million dollars 4$I 000 000 each accident for bodily ul ry by accident and 51,000,00 lnffff_� 14e�ty lt��a�ea each employee for bodily iii ury by disease. 4 e. )Excess or Umbrella LiabiW Insurance. of Formatted: Font: Bold Operator shall maintain excess (or umbrella) liability insurance with a limit of not-, � Formatted: Indent: Left: 0.75" less than twenty -four million dollars ($24,000,000) Wiper occurrence with atwenty -four million dollar 024,000,000 agre�ate Such insurance shall be excess of the coanmercial general liability insurance, automobile liability insurance and employers liability insurance as specified above. f. Control of Well Insurance. --[ Formatted: Font: Bold f7perator shall maintain control of well insurance with a. e; �; ,, „ limit of not less than five million dollars ($5,000,000) per occurrence. Tdm 11- 21 -14 --- - Formatted: Right ------------------------ b----- ----f' r' Lhc _ ohc shall proVlde coVerae foT the ° .` cast of- -Formatted: Indent: First line: 0" controlling a well that is out of control, re- drilling or i*ftrestoration expenses, 44ep&g{ —argi4i4� —*r - -l)rt� Rwge-- — s' r -ice %lx 7€ I atc - sccpagc and pollution damage. A five hundred thousand dollars ($500,000) sub -limit endorsement may be added for damage to property for which the f7perator has carc, custody, and control. +. Formatted: Font: +Body, 11 pt, Not Bold, Border:: (No border) Formatted: Left, Indent: Left: 0 ", Space After: 10 pt, Line spacing: Multiple 1.15 li 35.22.10. - Security. A. A security instrument that covers each well shall be delivered to the Oil and Gas Inspector before the issuance of the Gas Well Permit for the well. The instrument shall provide that it cannot be cancelled without at least thirty (3 0) days' prior written notice to the City and, if the instrument is a performance bond, that the bond cannot be cancelled without at least ten (10) days' prior written notice for non - payment of premium. The instrument shall secure the obligations of the operator related to the well to: 1. Repair damage, excluding ordinary wear and tear, if any, to public streets, including but not limited to bridges, caused by the operator or by the operator's employees, agents, contractors, subcontractors or representatives in the performance of any activity authorized by or contemplated by the Gas Well Permit; 2. Comply with the insurance and security provisions set forth in Sections 35.22.9 and 35.22.10; 3. Pay fines and penalties imposed upon the operator by the City for any breach of the Gas Well Permit; and 4. Comply with Site Reclamation requirement. B. The security instrument may be in the form of an irrevocable letter of credit or payment bond issued by a bank or surety approved by the City. The instrument shall run to the City for the benefit of the City, shall become effective on or before the date the Gas Well Permit is issued, and shall remain in effect until the well is abandoned and the site restored. C. A certificate of deposit may be substituted for the letter of credit or payment bond. The certificate shall be issued by a bank in Denton County, Texas, shall be approved by the City, shall be payable to the order of the City to secure the obligations of the Operator described above, and shall be pledged to the bank with evidence of delivery provided to the Director of Planning and Community Development. Interest on the certificate shall be payable to the operator. D. The security instrument may be provided for an individual well, or for multiple wells being operated within the City by a single operator. The amount of the security shall be the amount of one hundred thousand dollars ($100,000.00) for a single well up to ten (10) wells, two hundred fifty thousand dollars ($250,000) for eleven (11) to twenty (20) wellswells;, and five hundred thousand dollars ($500,000.00) for twenty -one (21) or more wells. E. The security will terminate when the Oil and Gas Inspector confirms in writing that one of the following events has occurred: The Gas Well Permit is transferred, and the Operator- transferee provides replacement security that complies with this section; or 2. The well is plugged and abandoned and the site restored. 35.22.1910. - Security. A. A security instrument that covers each well shall be delivered to the Oil and Gas Inspector before the issuance of the Gas Well Permit for the well. The instrument shall provide that it cannot be cancelled without at least thirty (30) days' prior written notice to the City and, if the instrument is a performance bond, that the bond cannot be cancelled without at least ten (10) days' prior written notice for non - payment of premium. The instrument shall secure the obligations of the operator related to the well to: 1. Repair damage, excluding ordinary wear and tear, if any, to public streets, including but not limited to bridges, caused by the operator or by the operator's employees, agents, contractors, subcontractors or representatives in the performance of any activity authorized by or contemplated by the Gas Well Permit; 2. Comply with the insurance and security provisions set forth in ` ectlon0,;eki-c*r 3 .22�andi�tEH13 7.22.1; Formatted: Font color: Auto, Border:: (No border) 3. Pay fines and penalties imposed upon the operator by the City for any breach of the Gas Well Permit; and 4. Comply with Site Reclamation requirement. B. The security instrument may be in the form of an irrevocable letter of credit or payment bond issued by a bank or surety approved by the City. The instrument shall run to the City for the benefit of the City, shall become effective on or before the date the Gas Well Permit is issued, and shall remain in effect until the well is abandoned and the site restored. C. A certificate of deposit may be substituted for the letter of credit or payment- -� Formatted: Normal, Indent: Left: 0.25 ", bond. The certificate shall be issued by a bank in Denton County, Texas, shall be Hanging: 0.25 ", No bullets or numbering approved by the City, shall be payable to the order of the City to secure the obligations of the Operator described above, and shall be pledged to the bank with evidence of delivery provided to the Director of Planning and Community Development. Interest on the certificate shall be payable to the operator. Formatted: Indent: Left: 0.25 ", Hanging: 4- D. The security instrument may be provided for an individual well, or for multiple 0.25" wells? rr-�aa P beln� c,pcLated Wlthln the (.lty by a Sln2 Formatted: Indent: Left: 0.25 ", Hanging: C� t,ratC)T. The amount Of the P , security shall be °G nay t'tt.Yale 0.25 ", No bullets or numbering r a �.� °°rrzcii:s°° °ca —ia= GR� -, i tote— a the amount of one hundred thousand dollars ($100,000.00) for a single ten 10) wells, two hundred fifty thousand dollars ($270,000) forcr cxa tli r' "eleven (I I) to twenty (20) wellswells;; and five hundred thousand dollars ($2.4)4500,000.00) for twenty -one (2I) or more wells -�-* a�e-si =Yitse. w - — Formatted: Indent: Hanging: 0.25" E. The security will terminate when the Oil and Gas Inspector confirms in writing - -- 10.25", Formatted: Indent: Left: 0.25 ", Hanging: that one of the following events has occurred: No bullets or numbering 1. The Gas Well Permit is transferred, and the Operator - transferee provides replacement security that complies with this section; or 2. The well is plugged and abandoned and the site restored. - Formatted: List Paragraph, Indent: Hanging: 0.5 ", Tab stops: - 2.44 ", Left + 0.25 ", Left + Not at 0.5" 35.22.11. - Inspection. A. The Oil and Gas Inspector shall have the authority to enter and inspect any premises covered by the provisions of this Subchapter and Gas Well Permit, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local, state or federal authority. B. Pursuant to inspection authority granted by this Subchapter, the Texas Clean Air Act, and the Texas Water Code, the Oil and Gas Inspector shall conduct periodic inspections of all wells permitted under this Subchapter. Formatted: Left: 1.06 ", Header distance from edge: 0.3 ", Footer distance from edge: 0.3" C. Inspections shall include periodic evaluations during production to determine ifs —� Formatted: Indent: Left: o.zs ", Hanging: equipment is not functioning as designed and may produce fugitive emissions. Multi space After: 10 pt, Line spacing: g g y P g Multiple 1.15 li, Pattern: Clear A third party contractor may be retained by the City to perform such inspections, and cost of services and charges assessed by the third party contractor shall be borne by the Operator. Any third part contractor shall have the same authority as the Oil and Gas Inspector for purposes of inspections under this Section. 2. The City shall notify the Operator in writing, as well as to the state and federal regulatory agencies having jurisdictional authority, of any malfunctioning equipment producing fugitive emissions. In the event that any state or federal regulatory agency determines that there are two or more notices of violation per well or Drilling and Production Site during any 12 -month period, within 30 days of the second notice of violation, the operator shall submit to the City a Leak Detection and Compliance Plan. The Plan must be created in accordance with guidelines promulgated by the City's Oil and Gas Inspector. It shall ensure all site activities and equrpment are in Formatted: Font: (Default) Times New Roman, compliance with applicable federal, state and local rules and regulations. The plan shall outline the methodology to assess and evaluate the impact of drilling, immediate production, u surroundings. SpecLific elements of suchalplan shall include, but are not � FZ Pmatted: Font: (Default) Times New Roman,1 Limited to, a quarterly leak detection monitoring program; methods and equipment J utilized for emission measurements; and a response plan to address Leak issues, should they arise, and any other information required by the Orland Gas Inspector_ Such Plan shall also include installation or repair of appropriate equipment to meet the requirements of the emissions compliance plan, which may include, but is not Limited to, vapor recovery units or other emissions control technology. 4. Monitoring shall include the evaluation of potential impact to air, soil, surface water and groundwater. Quarterly reporting of the monitoring results to the City's Oil and Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Gas Inspector, is required with all laboratory- data sheets, field logs, data summaries, Formatted: Font: (Default) Times New Roman, -- - - -- � and actions taken in the previous quarter. 12 pt 5. Upon showing documented compliance for a period of 12 months, the Operator shall thereafter employ best management practices to eliminate any emissions in violation of this Subchapter, state and federal regulations. D. Inspections will also include an evaluation of Operator conformance with their Formatted: Tab stops: Not at o.s" Hazardous Materials Management Plan and other applicable requirements to their site. Any deviations from, or violations of, the Hazardous Materials Management Plan shall be referred to the Fire Marshal for further inspection and enforcement in accordance with the Fire Code. E. Inspection fees will be assessed for all inspections in an amount set by separate ordinance. Failure to timely remit payment for inspection fees is a violation of this Subchaper; however, nothing herein shall be deemed to limit the City's remedies in equity or law in the collection of any past due fees. 35.22.11 -5. - Inspection. 44A. The Oil and Gas Inspector shall have the authority to enter and inspect any premises covered by the provisions of this Subchapter and Gas Well Permit, to determine compliance with its provisions, and all applicable laws, rules, regulations, standards, or directives of any local state or federal authority. ,GE4. Pursuant to inspection authority granted by the Texas Clean Air Act and the Texas Water Code, the Oil and Gas Inspector shall conduct periodic inspections of all wells permitted under this Subchapter. �C. Inspections may include periodic evaluations ^'' n;r a— ., � � ^¢r ie 4 ll; , ti� Tt, „! C rry�. r�l[a�= y�—�f, �ra��� ----�- trek,= ---eT �- dulin(� production to determine if ecuipment is not functioning as designed and ma produce fugitive emissions. and cost of services and charges assessed by the third party contractor shall be borne Le nctioning ectuipment producin fu itive emissions In the event that any state <rr federal regulatory auency determines that there are two or more notices of violation per well_or per Drilling an compliance with applicable federal, state and local rules and regulations. The plan shall outline t (5, fracturing surroundings. Specifrc elements of such a plan shall include, but are not limited to, a ctuarterly leak defection monitoring ro�ram; methods and ettuipment utilized for emission measurements; and a res onse plan to address leak issues, should they arise, ncludc installation or reparr of appropriate cduipmcnt to meet the rcduircmcnts of the emissions compliance ran, which may include, but is not hmitcd to, vapor recovery units or other emissions control technology. 4. Monitoring shall include the evaluation of potential impact to air, soil, surface water and Zroundwater. (yuatlerly reporting crf the monitarin� results to the city s oil Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Indent: First line: 0 ", Tab stops: 0.75 ", Left Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black ----------------------------------------------------------------------------------------------------------------- Formatted:-Indent:Firstline_ 0" Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Indent: First line: 0 ", Tab stops: 0.75 ", Left Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black -- - - - - -- - - - - -- - - - - - -- --------------- - -- Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black -------------------------------- Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black --- - - - - -` - - - - -- - - - - -- - - -` - -- Formatted. Font. (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black and a s inspector is reduired with all laboratary data sheets, Ileld lames, data summaries, and actions taken in the previous quarter. shall the emissions in Inspections will also include an evaluation of Operator conformance with their Hazardous Materials Management Plan and other applicable requirements to their site. Any deviatians from ar vialatians crf the Hazardous Materials Management Plan shall be referred to the Fire Marshal for further inspection and enforcement in accordance with the Fire Code. F. Inspection fees will be assessed f <rr all inspections in an amount set by se ordinance. Failure to timely remit payment f <rr inspection fees is a violation <af' this ubclranter: however, nothin(5 herein shall be deemed to limit the City's dies in eciuity or law in the collection <af' any past due fees. Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black ................ -------------------- Formatted: Font: (Default) Times New Roman, 12 pt, Font color: Black Formatted: Font: (Default) Times New Roman, 12 pt 35.22.12. - Periodic Reports. A. The Operator shall notify the Oil and Gas Inspector and the Fire Marshal of any changes to the following information within one (1) business day after the change occurs. 1. The name, address, and phone number of the Operator; 2. The name, address, and twenty -four (24) -hour phone number of the person(s) with supervisory authority over the Drilling and Production Site; 3. The name, address, and phone number of the person designated to receive notices from the City, which person shall be a resident of Texas that can be served in person or by registered or certified mail; and 4. The Operator's Emergency Action Plan if required to file one pursuant to federal or state law. B. The Operator shall provide a copy of any "incident reports" or written complaints submitted to the RRC or any other state or federal agency within thirty (30) days after the operator has notice of the existence of such reports or complaints. This includes the recording of both reportable and non - reportable events as noted in Texas Administrative Code, Title 30. C. Beginning the January after each well is spud, and continuing on each January thereafter until the operator notifies the Oil and Gas Inspector that the well has been plugged and abandoned and the Drilling and Production Site restored, the operator shall prepare a written report to the Oil and Gas Inspector identifying any changes to the information that was included in the application for the applicable Gas Well Permit that have not been previously reported to the City. D. The Operator must provide a copy to the Oil and Gas Inspector all reports otherwise filed with the TCEQ in connection with an installed vapor recovery unit as described in 35.22.8.E.2. The Operator shall also provide the City with copies of any responses provided by TCEQ. Such reports and responses shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. E. The Operator shall provide the City with copies filed with the RRC of the respective reports for setting surface casing, blowout preventer (BOP) pressure testing, bridge plug testing, pressure relief valve testing, and level control testing. The Operator shall also provide the City with copies of any responses provided by the RRC. Copies of such reports and responses shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. F. The Operator shall submit a copy of a soil sampling analysis as required by Subsection 35.22.8.D.2 upon request by the Oil and Gas Inspector. G. In addition to the records listed in Subsections 35.22.5.F.9 and 35.22.12.13, the Operator shall provide the City with a copy of all records filed with the RRC and TCEQ by the Operator or by third parties. Copies of such records shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. 1 35.22.44-12. - Periodic Reports. A. The Operator shall notify the Oil and Gas Inspector and the Fire Marshal of any changes to the following information within one (1) business day after the change occurs. 1. The name, address, and phone number of the Operator; 2. The name, address, and twenty -four (24) -hour phone number of the person(s) with supervisory authority over the Drilling and Production Site; 3. The name, address, and phone number of the person designated to receive notices from the City, which person shall be a resident of Texas that can be served in person or by registered or certified mail; and 4. The Operator's Emergency Action Plan if required to file one pursuant to federal or state law. B. The Operator shall provide a copy of any "incident reports" or written complaints submitted to the RRC or any other state or federal agency within thirty (30) days after the operator has notice of the existence of such reports or complaints. This includes the recording of both reportable and non - reportable events as noted in Texas Administrative Code, Title 30. C. Beginning the January after each well is spud, and continuing on each January thereafter until the operator notifies the Oil and Gas Inspector that the well has been plugged and abandoned and the Drilling and Production Site restored, the operator shall prepare a written report to the Oil and Gas Inspector identifying any changes to the information that was included in the application for the applicable Gas Well Permit that have not been previously reported to the City. D. The Operator must provide a copy to the Oil and Gas Inspector all reports otherwise filed with the TCEQ in connection with an installed vapor recovery unit as described in 35.21.E.2.ft- The Operator shall also provide the City with copies of any responses provided by TCEQ. Such reports and responses shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. E. The Operator shall provide the City with copies filed with the RRC of the respective reports for setting surface casing, blowout preventer (BOP) pressure testing, bridge plug testing, pressure relief valve testing, and level control testing. The Operator shall also provide the City with copies of any responses provided by the RRC. Copies of such reports and responses shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. F. The Operator shall submit a copy of a soil sampling analysis as required by Subsection 35.22.E ®D.2:-q upon request by the Oil and Gas Inspector. G. In addition to the records listed in Subsections 35.22.5. . . & .°F.9 and 35.22. 12.13, the Operator shall provide the City with a copy of all records filed with the RRC and TCEQ by the Operator or by third parties. Copies of such records shall be kept on the Drilling and Production Site and shall be available for inspection when requested by the Oil and Gas Inspector. 35.22.13. - Notice of Activities. A. Any Operator who intends to perform the following activities: (1) drill a well; (2) re -work a well using a drilling rig; (3) to fracture stimulate a well; (4) perform flow back operations; (5) plug a well; (6) perform any other maintenance at a Drilling and Production Site; or (7) to conduct seismic exploration not involving explosive charges; shall give written notice to the City no sooner than thirty (30) days and no later than three (3) days before the activities begin, provided that the Operator has first obtained all necessary authorizations required by this Chapter. Road Damage Remediation Fees shall be paid to the City and submitted with the Notice of Activities. B. All dwellings within twelve hundred (1,200) feet of a Drilling and Production Site shall be notified a minimum of ninety -six (96) hours prior to the activities listed in Section A. 1. The notice shall identify where the activities will be conducted and shall describe the activities in reasonable detail, including but not limited to the duration of the activities and the time of day they will be conducted. 2. The notice shall also provide the address and the telephone numbers of two persons responsible for the well who may be contacted twenty -four (24) -hour a day concerning the activities. C. The Operator responsible for the activities shall post a sign at the entrance of the Drilling and Production Site giving the public notice of the activities, including the name, address, and twenty -four (24) -hour phone number of the person conducting the activities. D. If upon receipt of the notice the City determines that an inspection by the Oil and Gas Inspector is necessary, the Operator will pay the City's customary charge for the inspection. E. Surface Casing. 1. The Operator shall notify the Inspector within 24 hours of setting surface casing. 2. Casing procedures shall follow RRC Rule 3.13, or any successor regulation. F. If a proposed Drilling and Production Site is located within twelve hundred (1,200) feet of a Protected Use, the Operator shall also host a public meeting at a location accessibly convenient to surrounding property owners and residents at least ten (10) days, but no more than forty -five (45) days, prior to either: (1) the public hearing held by the Planning and Zoning Commission in connection with an SUP application, or (2) the submission of a Preliminary Gas Well Development Site Plan if an SUP is not required. The Operator must provide written notice of the meeting to all property owners located within one thousand (1,200) feet of the proposed Drilling and Production Site. A mailing list that identifies each property and property owner shall be submitted to the Oil and Gas Inspector for proof of compliance with this requirement. The meeting should provide information regarding planned activities and timelines for the site and must provide an opportunity for citizens to ask questions about the proposed site. All notification and meeting costs shall be borne by the Operator. G. All surrounding property owners, businesses and residents within twelve hundred (1,200) feet of a Drilling and Production Site shall be notified a minimum of ninety -six (96) hours prior to fracturing of a wellhead. In addition, at least two (2) business days before fracturing operations commence, the Operator shall post a sign at the entrance of the site advising the public of the date the operations will begin and send notice to the City. ON -35.22.4-213. - Notice of Activities. A. Any Operator who intends to perform the following activities: (1) drill a well; (2) re -work a well using a drilling rig; (3) to fracture stimulate a well ; (4) perform flow back operations; (5) plug a well; (6) perform any other maintenance at a Drilling and Production Site; or (7) to conduct seismic exploration not involving explosive charges; shall give written notice to the City no sooner than thirty (30) days and no later than 4 '__o� s;A,Eghree (213�) days before the activities begin, provided that the Operator has first obtained all necessary authorizations required by this Chapter. Road Damage Remediation Fees shall be paid to the City and submitted with the Notice of Activities. B. All dwellings within twelve hundred (1,200) feet of a we44Drilling and Production Site shall be notified a minimum of t;ar�-y eigktninety -six (49�96) hours prior to the activities listed in Section A. 1. The notice shall identify where the activities will be conducted and shall describe the activities in reasonable detail, including but not limited to the duration of the activities and the time of day they will be conducted. 2. The notice shall also provide the address and the telephone numbers of two persons responsible for the well who may be contacted twenty -four (24) -hour a day phe+te concerning the activities. C. The Operator responsible for the activities shall post a sign at the entrance of the Drilling and Production Site giving the public notice of the activities, including the name, address, and twenty -four (24) -hour phone number of the person conducting the activities. D. If upon receipt of the notice the City determines that an inspection by the Oil and Gas Inspector is necessary, the eOperator will pay the City's customary charge for the inspection. E. Surface Casing. 1. The Operator shall notify the Inspector within 24 hours of setting surface casing. 2. Casing procedures shall follow RRC Rule 3.13, or any successor regulation. F. If a proposed Drilling and Production Site is located within twelve hundred (1,200) feet of a Protected Use, the Operator shall also host a public meeting at a location accessibly convenient to surrounding property owners and residents at least ten (10) days, but no more than forty -five (45) days, prior to either: (1) the public hearing held by the Planning and Zoning Commission in connection with an SUP application, or (2) the submission of a Preliminary Gas Well Development Site Plan if an SUP is not required. The Operator must provide written notice of the meeting to all property owners located within one thousand (1,4200) feet of the proposed Drilling and Production Site. A mailing list that identifies each property and property owner shall be submitted to the Oil and Gas Inspector for proof of compliance with this requirement. The meeting should provide information regarding planned activities and timelines for the site and must provide an opportunity for citizens to ask questions about the proposed site. All notification and meeting costs shall be borne by the Operator. G. All surrounding property owners, businesses and residents within twelve hundred (1,200) feet of a Drilling and Production Site shall be notified a minimum of t;ar�-y eigktninety -six (49�96) hours prior to fracturing of a wellhead. In addition, at least two (2) business days before fracturing operations commence, the Operator shall post a sign at the entrance of the site advising the public of the date the operations will begin and send notice to the city. Formatted: Font: Not Bold, Font color: Black Formatted: Indent: Left: 0.25" Hanging: 0.25 ", Tab stops: -13", Left 35.22.14. — Relief Measures. A. Board of Adjustment Proceedings. I. The Board of Adjustment shall hear and decide appeals of orders, decisions, or determinations made by the Oil and Gas Inspector relative to the application and interpretation of this Subchapter, except for vested rights appeals and matters described in Section 35.22.I4.C.; furthermore the Board of Adjustment shall hear and decide requests for variances to the provisions of this Subchapter under the relevant criteria set forth below. The Board may also grant special exceptions: (i) extending the expiration date of a Consolidation Permit, a Site Preparation Plan, a Gas Well Development Site Plan or a Gas Well Permit for a period not to exceed one year; or (ii) limiting the area of contiguous leased area under consideration for a consolidation permit pursuant to Section 35.22.4.D.3. Any Operator who desires to appeal the decision of the Oil and Gas Inspector, request a variance or request a special exception to file a variance may file an appeal or variance to the Board of Adjustment pursuant to this Section shall follow the procedures in Section 35.3.6 of the DDC. Appeal fees shall be required for every appeal or variance request. a. Standard of review for appeals. The members of the Board of Adjustment shall have and exercise the authority to hear and determine appeals where it is alleged there is error or abuse of discretion regarding the approval or denial of a Gas Well Development Site Plan, or the issuance or non - issuance of a Gas Well Permit. b. Standard of review for variances. In deciding variance requests, the Board of Adjustment shall consider, where applicable, the following relevant criteria: i. Whether there are special circumstances existing on the property on which the application is made related to size, shape, area, topography, surrounding conditions and location that do not apply generally to other property in the vicinity; ii. Whether a variance is necessary to permit the applicant the same rights in the use of his property that are presently enjoyed by other similarly situated properties, but which rights are denied to the property on which the application is made; iii. Whether the granting of the variance on the specific property will adversely affect any other feature of the comprehensive master plan of the City; iv. Whether the variance, if granted, will be of no material detriment to the public welfare or injury to the use, enjoyment, or value of property in the vicinity; v. Whether the operations proposed are reasonable under the circumstances and conditions prevailing in the vicinity considering the particular location and the character of the improvements located there; vi. Whether the drilling of the maximum number of potential wells for the proposed drill site would conflict with the orderly growth and development of the City; vii. Whether there are other alternative well site locations; viii. Whether the operations proposed are consistent with the health, safety and welfare of the public when and if conducted in accordance with the oil, gas, or combined well permit conditions to be imposed; ix. Whether the operations proposed are consistent with protecting the ecological integrity and environmental quality, including protection of surface and ground water sources, of potentially impacted environmentally sensitive areas; x. Whether there is reasonable access for City fire personnel and firefighting equipment, including the ability to safely evacuate potentially affected residents; xi. Whether the impact upon adjacent property and the general public by operations conducted in compliance with the gas well permit conditions are reasonable and justified, balancing the following factors: 1. The reasonable use of the mineral estate by the mineral estate owner(s) to explore, develop, and produce the minerals; and 2. The availability of alternative drilling sites; and xii. Where a variance is requested to reduce separation standards in 35.22.8.A.1, in addition to other relevant criteria, the extent to which owners of Protected Uses, or freshwater wells currently in use, have consented to the reduction in separation standards in writing. c. The Board of Adjustment shall determine whether to grant an extension of the expiration date for a Gas Well Development Site Plan or Gas Well Permit based ON upon whether there are circumstances reasonably beyond the control of the Operator, including any delay on the part of the City in issuing subsequent permits, that justify an extension of the Site Plan or Permit, in order that the Operator may enjoy the same rights in the use of the property that are presently enjoyed by other similarly situated properties, but which rights are denied to the property for which the Site Plan or Permit expires. d. The Board of Adjustment shall determine whether to grant an applicant's request for a special exception to limit the contiguous leased area under consideration for a consolidation permit pursuant to Section 35.22.4, based on proof that such area(s) is under separate mineral lease from the mineral lease that contains the proposed consolidated site; that the mineral lease containing such consolidated site prohibits access to the leased area(s) to be excluded and that there is no economically feasible means of either obtaining the lessor's consent to access the minerals from such area(s) to be excluded from the proposed consolidated site or that the areas cannot be accessed through joint operating agreements from the proposed consolidated site. The Board in evaluating the special exception request may employ experts to assist it in deciding the special exception. The Board may approve a special exception for a smaller area than requested by the applicant. 2. The Board of Adjustment may reverse or affirm, in whole or in part, or modify the Oil and Gas Inspector's order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination. The Board of Adjustment may issue a variance to the applicant under the criteria referenced in Subsection A.l.b., and may grant a special exception under the criteria referenced in A.l.c. Any action under this subsection shall require a three- fourths majority vote of the entire Board of Adjustment. 3. Any Operator aggrieved by any decision of the Board of Adjustment may present to a court of record a petition, duly verified, stating that such decision is illegal, in whole or in part, and specifying the grounds of the alleged illegality. Such petition shall be presented within ten days after the date on which the decision of the Board of Adjustment was rendered and not thereafter, and judicial review of the petition shall be pursuant to Texas Local Government Code, § 211.011, as amended. B. Watershed Permit Appeals. 1. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.1) to the Planning and Zoning Commission within ten (10) calendar days of the decision by 3 the DRC. In deciding the appeal, the Planning and Zoning Commission shall decide the appeal based upon the standards made applicable to the permit by Subsection 35.22.5.D. 2. The applicant may file a petition for review pursuant to Subsection 35.22.5.D on grounds therein specified to the City Council within ten (10) calendar days of the decision by the Planning and Zoning Commission. The Council shall decide the petition based upon the criteria in Subsection 35.22.5.D. C. Vested Rights Appeals. Any person who claims that he has obtained a vested right pursuant to Texas Local Government Code, Chapter 245 or other applicable vesting law for such applications, may request a determination pursuant to Section 35.3.8 of the DDC. For proposed gas wells to be located inside the city limits, the petitioner shall include a statement of the reasons why the zoning regulations contained in this Subchapter 22 are not exempt from statutory limitations on the application of new zoning standards. M 35.22.46. ad °°° kees]l4. — Relief Measures. A. Board of Adjustment Proceedings. The Board of Adjustment shall hear and decide appeals of orders, decisions, or determinations made by the Oil and Gas Inspector relative to the application and interpretation of this Subchapter, except for 4 4o-yL- vested ri (Yhts appeals and matters described in 44 ,Section 35.22.44— ?--&ad ?��514.C; furthermore the Board of Adjustment shall hear and decide requests for variances to the provisions of this Subchapter under the relevant criteria set forth below. The Board may also grant a special eeicrexceptions: (i) extending the expiration date of a Consolidation Permit, a Site Preparation Plan, a Gas Well Development Site Plan or a Gas Well Permit for a period not to exceed one year; or (ii) limiting the area of contiguous leased area under consideration for a consolidation permit pursuant to 44e -e Section 35.22.4.D.3. Any Operator who desires to appeal the e--4 nreir�r� c- decision of the Oil and Gas Inspector, request nest or request a special exce tion to file a variance may file an appeal or variance to the Board of Adjustment pursuant to_this Section shall follow the procedures in Section 35.3.6 of the DDC. Appeal fees shall be required for every appeal or variance request. 14=14E 4 + - ns. ° 4 rll re t va the app r a. Standard of review for appeals. The members of the Board of Adjustment shall have and exercise the authority to hear and determine appeals where it is alleged there is error or abuse of discretion regarding the approval or denial of a Gas Well Development Site Plan, or the issuance or non - issuance of a Gas Well Permit. b. Standard of review for variances. In deciding variance requests, the Board of Adjustment shall consider, where applicable, the following relevant criteria: i. Whether there are special circumstances existing on the property on which the application is made related to size, shape, area, topography, surrounding conditions and location that do not apply generally to other property in the vicinity; ii. Whether a variance is necessary to permit the applicant the same rights in the use of his property that are presently enjoyed by other similarly situated properties, but which rights are denied to the property on which the application is made; iii. Whether the granting of the variance on the specific property will adversely affect any other feature of the comprehensive master plan of the #*CLity; iv. Whether the variance, if granted, will be of no material detriment to the public welfare or injury to the use, enjoyment, or value of property in the vicinity; v. Whether the operations proposed are reasonable under the circumstances and conditions prevailing in the vicinity considering the particular location and the character of the improvements located there; vi. Whether the drilling of the maximum number of potential wells for the proposed drill site would conflict with the orderly growth and development of the %City; vii. Whether there are other alternative well site locations; viii. Whether the operations proposed are consistent with the health, safety and welfare of the public when and if conducted in accordance with the oil, gas, or combined well permit conditions to be imposed; ix. Whether the operations proposed are consistent with protecting the ecological integrity and environmental quality, including protection of surface and ground water sources, of potentially impacted environmentally sensitive areas; x. Whether there is reasonable access for tCi�t fire personnel and firefighting equipment, including the ability to safely evacuate potentially affected residents; xi. Whether the impact upon adjacent property4e,,i) and the general public by operations conducted in compliance with the o4_ gas; --mow � _ well permit conditions are reasonable and justified, balancing the following factors: 1. The reasonable use of the mineral estate by the mineral estate owner(s) to explore, develop, and produce the minerals; and 2. The availability of alternative drilling sites; and 2 xii. Where a variance is requested to reduce separation standards in 35.22.448A. 1, in addition to other relevant criteria, the extent to which owners of Protected Uses, or freshwater wells currently in use, E)r preN,ieusl- e plat4ed „r.a,_' �e ]^*e, —WT -° W- hi*a-bl° stFuetur °° have consented to the reduction in separation standards in writing. c. The Board of Adjustment shall determine whether to grant an extension of the expiration date for a Gas Well Development Site Plan or Gas Well Permit based upon whether there are circumstances reasonably beyond the control of the Operator, including any delay on the part of the City in issuing subsequent permits, that justify an extension of the Site Plan or Permit, in order that the Operator may enjoy the same rights in the use of the property that are presently enjoyed by other similarly situated properties, but which rights are denied to the property for which the Site Plan or Permit expires , d. The Board of Adjustment shall determine whether to errant an applicant's request 1 ( rr a special exception to limit the Conti 5uous leased area under consideration for a consolidation permit pursuant to Section 35.22.4, based on proof that such areas) is under separate mineral lease from the mineral lease that contains the roposed consolidated site; that the mineral lease cantainin� such consolidated site access a) ph be excluded and that there is no economically feasible means <,1' either obtainin(5 the lessor's consent to access the minerals from such areas) to be excluded from the r<aposed consolidated site or that the areas cannot be accessed throuuh point uperatinu agreements froin the proposed consolidated site "d'he Board in evaluatin 5 tl ecial exception ret ti nest may em luy experts to assist it in decidin(5 the special exception. The Board may approve a special exception 1 <rr a smaller area than requested b the ap licant. 2. The Board of Adjustment may reverse or affirm, in whole or in part, or modify the Oil and Gas Inspector's order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination from which an appeal is taken and make the correct order, requirement, decision or determination. The Board of Adjustment may issue a variance to the applicant under the criteria referenced in Subsection A.l.b., and may grant a special exception under the criteria referenced in A.I.e. Any action under this subsection shall require a three- fourths majority vote of the entire Board of Adjustment. 3. Any Operator aggrieved by any decision of the Board of Adjustment may present to a court of record a petition, duly verified, stating that such decision is illegal, in whole or in part, and specifying the grounds of the alleged illegality. Such petition shall be presented within ten days after the date on which the decision of the Board of 3 Formatted: Border:: (No border) Formatted: incr2, Indent: Left: 0.75', Hanging: 0.25' Adjustment was rendered and not thereafter, and judicial review of the petition shall be pursuant to Texas Local Government Code, § 211.011, as amended. B. Watershed Permit Appeals. The applicant may appeal the denial or conditional approval of a Watershed Protection Permit on grounds pertaining to the standards in Subsection 35.22.5.E Formatted: Font: +Body gI) to the Planning and Zoning Commission within ten (10) calendar days of the decision by the DRC. In deciding the appeal, the Planning and Zoning Commission shall decide the appeal based upon the standards made applicable to the permit by Subsection. ^� 4-,+ �. ' 35.22.5.D. 2. The applicant may file a petition for review pursuant to Subsection^ ri -44 35.22.5.1) on grounds therein specified to the City Council within ten (10) calendar days of the decision by the Planning and Zoning Commission. The Council shall decide the petition based upon the criteria in Subsection, 35.22.5,. ^ .4 - &n4 ^ f). C. ' iet1 Vested Rights A X1,..1 "r 1. ev . ,rye 1 ` �C�C'ci`L�YG f°YiT' 2 eals. 1-. f�r�C4 �f�T.ef aw--4 ".- cirkf- �k1-C+- riri-',- 1= rc= raxm- a};"= nr1�s- -E3E- k�✓i311--t�3E",-(?i it.= iui-lrrc -,1,r ":Rfff; Formatted: Font: +Body f�:°°°i•! - r:; l':,,,, r: M- ii.° = r- �` t -°zrii°i-c;�, "crieirM-Yi114 -- �.x--sik$.' li�t� : 1�f'i1(�4 —(�fi trriic-icr, "erricekt-:ifi- MR 35.22.15. - Remedies of the City. A. If an Operator (or its officers, employees, agents, contractors, subcontractors or representatives) fails to comply with any requirement of a Gas Well Permit (including any requirement incorporated by reference as part of the Permit), the Fire Marshal or Oil and Gas Inspector may, in connection with or separate from 35.22.16, give written notice to the operator specifying the nature of the alleged failure and giving the Operator a reasonable time to cure, taking into consideration the nature and extent of the alleged failure, the extent of the efforts required to cure, and the potential impact on the health, safety, and welfare of the community. The Operator shall respond in writing within forty -eight (48) hours and indicate how the violation(s) shall be cured. In no event, however, shall the cure period be less than thirty (30) days unless the alleged failure presents a risk of imminent destruction of property or injury to persons or unless the alleged failure involves the operator's failure to provide periodic reports. The Fire Marshal may issue a Stop Work Order under the Fire Code. B. If the Operator does not cure the alleged failure within the time specified by the Fire Marshal and /or Oil and Gas Inspector, the Fire Marshal and/or Oil and Gas Inspector may notify the RRC and request that the RRC take appropriate action (with a copy of such notice provided to the operator), and the City may pursue any other remedy available. C. If the operator does not cure the alleged failure within the time specified by the Fire Marshal and /or Oil and Gas Inspector, the Oil and Gas Inspector may upon recommendation of the Health and Building Standards Commission 1. Recommend to the City Council that the Gas Well Permit be suspended until the alleged failure is cured; or, 2. Recommend to the City Council that the Gas Well Permit be revoked, if after prior suspension the Operator does not cure the alleged failure. D. The decision of the Fire Marshal and /or Oil and Gas Inspector to recommend suspension or revocation of a Gas Well Permit shall be provided to the Operator in writing at least ten (10) days before any action by the City Council unless the alleged failure present a risk of imminent destruction of property or injury to persons. E. If a Gas Well Permit is revoked, the Operator may submit information to the Oil and Gas Well Inspector evidencing that the alleged failure resulting in the revocation of the Gas Well Permit have been corrected, and an application for a new Gas Well Permit may be submitted for the same well. I Im I I -2I -I4 35.22.4-715. - Remedies of the City. A. If an Operator (or its officers, employees, agents, contractors, subcontractors or representatives) fails to comply with any requirement of a Gas Well Permit (including any requirement incorporated by reference as part of the Permit), the Fire Marshal or Oil and Gas Inspector may, in connection with or separate from 35.22.16, give written notice to the operator specifying the nature of the alleged failure and giving the Operator a reasonable time to cure, taking into consideration the nature and extent of the alleged failure, the extent of the efforts required to cure, and the potential impact on the health, safety, and welfare of the community. The Operator shall respond in writing within forty -eight (48) hours and indicate how the violation(s) shall be cured. In no event, however, shall the cure period be less than thirty (30) days unless the alleged failure presents a risk of imminent destruction of property or injury to persons or unless the alleged failure involves the operator's failure to provide periodic reports. The Fire Marshal ^r Oil and Gas hispeete may issue a Stop Work Order under the Fire Code. B. If the Operator does not cure the alleged failure within the time specified by the Fire Marshal and /or Oil and Gas Inspector, the Fire Marshal and/or Oil and Gas Inspector may notify the RRC and request that the RRC take appropriate action (with a copy of such notice provided to the operator), and the City may pursue any other remedy available. C. If the operator does not cure the alleged failure within the time specified by the Fire Marshal and /or Oil and Gas Inspector, the Oil and Gas Inspector may upon recommendation of the Health and Building Standards Commission 1. Recommend to the City Council that the Gas Well Permit be suspended until the alleged failure is cured; or, 2. Recommend to the City Council that the Gas Well Permit be revoked, if after prior suspension the Operator does not cure the alleged failure. D. The decision of the Fire Marshal and /or Oil and Gas Inspector to recommend suspension or revocation of a Gas Well Permit shall be provided to the Operator in writing at least ten (10) days before any action by the City Council unless the alleged failure present a risk of imminent destruction of property or injury to persons. E. If a Gas Well Permit is revoked, the Operator may submit information to the Oil and Gas Well Inspector evidencing that the alleged failure resulting in the revocation of the Gas Well Permit have been corrected, and an application for a new Gas Well Permit may be submitted for the same well. 35.22.16. - Enforcements, Right of Entry. A. The Fire Marshal and the Oil and Gas Inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. Whenever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or Oil and Gas Inspector, may enter upon any property covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty imposed by this Subchapter. If entry is refused, the City shall have recourse to every remedy provided by law and equity to gain entry. B. It shall be unlawful and an offense for any person to do the following: 1. Engage in any activity not permitted by the terms of a Gas Well Permit issued under this Subchapter; 2. Fail to comply with any conditions set forth in a Gas Well Permit issued under this Subchapter; or 3. Violate any provision or requirement set forth under this Subchapter. C. The enforcement and penalty provision under Subsection 35.1.10.4 shall apply to a violation of this Subchapter. D. The Oil and Gas Inspector is authorized to issue citations into municipal court for violations of this Subchapter or Gas Well Permit. E. The City may also notify the EPA, TCEQ, RRC or other applicable federal or state agency in connection with violations of this Subchapter. 1 35.22.4-816. 16. - Enforcements, Right of Entry. A. The Fire Marshal and the Oil and Gas Inspector are authorized and directed to enforce this Subchapter and the provisions of any Gas Well Permit. Whenever necessary to enforce any provision of this Subchapter or a Gas Well Permit, or whenever there is reasonable cause to believe there has been a violation of this Subchapter or a Gas Well Permit, the Fire Marshal or Oil and Gas Inspector, may enter upon any property covered by this Subchapter or a Gas Well Permit at any reasonable time to inspect or perform any duty imposed by this Subchapter. If entry is refused, the City shall have recourse to every remedy provided by law and equity to gain entry. B. It shall be unlawful and an offense for any person to do the following: 1. Engage in any activity not permitted by the terms of a Gas Well Permit issued under this Subchapter; 2. Fail to comply with any conditions set forth in a Gas Well Permit issued under this Subchapter; or 3. Violate any provision or requirement set forth under this Subchapter. C. The enforcement and penalty provision under Subsection 35.1.10.4 shall apply to a violation of this Subchapter. D. The Fife M,,, sha Oil and Gas Inspector is authorized to issue citations into municipal court for violations of this Subchapter or Gas Well Permit. E. The City may also notify the EPA, TCEQ, RRC or other applicable federal or state agency in connection with violations of this Subchapter. Exhibit 3 SECTION 35.7.16 Gas Well Combining District 35.7.16.1. Purpose, Applicability and Nature of Combining District. A. Purpose. The purpose of the Gas Well Combining District is to assure compatibility between gas well development and residential, commercial and industrial developments within the corporate limits of the City by requiring consolidation of gas well Drilling and Production activities within areas that present the least conflicts between existing and future surface developments, on the one hand, and gas well development on the other, with the objective of establishing one gas well Drilling and Production Site per square mile. The Combining District is intended to reduce to the maximum extent possible the deleterious impacts arising from gas well development to other types of surface developments within proximity to gas well drilling and production activities, while providing mineral owners with reasonable access to mineral resources through development of the surface. The District is also intended to promote the existing and future economic development of the City and to promote the health, safety and general welfare of the City's residents and employees. B. Applicability. No gas well development may be undertaken on a new Drilling and Production Site unless such activities have been authorized by approval of a Gas Well Combining District. A Gas Well Combining District may also be approved for the purpose of designating an existing Drilling and Production Site as a consolidated site. All new Drilling and Production Sites to be established within an existing PD or MPC Zoning District shall be approved as a Gas Well Combining District pursuant to the standards and procedures of this Section. C. Nature of Combining District. The Gas Well Combining District shall be considered an overlay zoning district that combines with any base zoning district, or with a proposal to initially zone or rezone land within the City. Establishment of a Combining District shall be by ordinance and shall be considered a zoning map amendment, shall be defined on the City's Official Zoning Map, and shall be processed as a zoning district amendment. Each Combining District shall designate a Drilling and Production Site for consolidation of all future gas well development within the District, the "consolidated site." D. Terms. The terms used in this Section incorporate the definitions of terms in Subchapter 35.22. 35.7.16.2. Uses Permitted Within Combining District. Only gas well drilling and production activities and uses incidental thereto are authorized within Drilling and Production Sites within a Gas Well Combining District. Within all other areas of the Combining District, only the uses authorized by the base zoning district(s) are authorized. Upon termination of the Combining District, the regulations of the base zoning district shall remain in effect for all of the land within the former Combining District. 35.7.16.3 Size of Combining District and Number of Wells Allowed. A. Area of District. The minimum area permitted for a Gas Well Combining District shall be eighty (80) acres, unless the applicant can demonstrate the necessity for utilizing a smaller area. Not more than one Drilling and Production Site shall be allowed per eighty (80) acres. All contiguous areas subject to mineral leases owned or controlled by the applicant shall be included within the proposed Combining District, unless the applicant can demonstrate the necessity for utilizing s smaller area. B. Number of Gas Wells. It is the intent of the Combining District regulations to consolidate as many gas wells on a single Drilling and Production Site as is feasible. The number of proposed gas wells authorized for a consolidated site shall be determined by computing one (1) gas well for every twenty (20) acres included within the Combining District. 35.7.16.4 Criteria for Establishing Combining District. In determining whether a Gas Well Combining District should be established, the Planning and Zoning Commission in reporting and recommending action, and the City Council in deciding the application, shall determine whether the location of the proposed Combining District, with or without conditions, best minimizes the deleterious impacts of existing and future gas well development on existing and planned future residential, commercial and industrial development within and adjacent to the Combining District, taking into consideration the following criteria: 1. The current base zoning district classification(s) for the proposed Combining District and the compatibility of gas well development with uses authorized within such classification(s); 2. The compatibility of the proposed Drilling and Production Site with other existing and authorized surface developments; 3. The location of existing Drilling and Production Sites within the proposed Combining District or within one half -mile of the proposed consolidated site, which are under the control of the applicant; 4. The location of other Combining Districts or consolidated sites within one -half mile of the proposed consolidated site; 5. The extent to which the proposed consolidated site adversely affects watersheds and floodplains; PJ 6. The proposed location of roads for access to the proposed consolidated site and the effects on existing and future surface development within the District; 7. The location of existing and proposed pipelines and water lines to serve the proposed consolidated site and the anticipated effects of such facilities on other surface developments within the proposed Combining District; 8. The extent of contiguous mineral leases held or under the control of the applicant; and 9. The limitations on the applicant's ability to reasonably access the minerals it owns or leases without utilizing the proposed consolidated site. 35.7.16.5. Contents of Combining District Ordinance. The Ordinance approving the Gas Well Combining District shall identify the following: 1. The boundaries of each base zoning district that underlies the Combining District; 2. The boundaries of the District; 3. Identification of the consolidated site and each existing Drilling and Production Site within the Combining District by metes and bounds description; 4. A Combining District Plan showing the following: a. The location of the consolidated site and each existing Drilling and production site within the district; b. The location of the road(s) approved for access to each Drilling and Production Site; C. The reverse set -backs from the consolidated site and each existing Drilling and Production Site. 5. Requirements for public facilities to serve the Drilling and Production Site, including provision for improvements to the road network serving the consolidated site, if any; 6. Any conditions applicable to the gas well drilling and production activities within the Combining District; 7. The number of approved gas wells to be transferred, if any, from existing Drilling and Production Sites within or outside the District to the consolidated site; 3 The limitations on gas well development within all other existing Drilling and Production Sites within the District, including without limitation vacation of prior approved gas well development plats or site plans; and 9. Specification of reverse set -backs from the consolidated site and each existing Drilling and Production Site within the District, if different from those required by Subchapter 35.22. 35.7.16.6 Options and Conditions. In deciding the application, the Council may provide for any of the following: Designation of a different consolidated site than that proposed by the applicant if it better meets the purposes of the Combining District; 2. Designation of different boundaries for the Combining District than proposed by the applicant; Authorization for the transfer of approved gas wells to be transferred from existing drilling and production sites within or outside the District to the consolidated site, provided that the existing sites are restricted from new gas well development. 4. Imposition of such conditions on gas well drilling and production activities within the Combining District as are necessary to implement the purposes of the District, including the imposition of restrictions on development of new gas wells on other drilling and production sites under the control of the applicant and located within one -half mile of the consolidated site; and Designation of an existing drilling and production site as the consolidated site. 35.7.16.7 Effect of Approval of Combining District. Following approval of a Gas Well Combining District, the following rules shall apply within the District. These rules shall not be varied without amendment of the Combining District Ordinance. All gas well development shall be conducted solely within the consolidated site or within existing Drilling and Production Site(s) consistent with the terms of the Combining District Ordinance. All other areas within the Combining District shall be reserved for development of uses authorized in the base zoning district(s). 2. Road access to the drilling and production activities shall be solely upon roads designated for such purposes. 0 3. No other Drilling and Production Sites may be created within the boundaries of the Combining District. 4. Unless different reverse set -backs are specified in the Combining District Ordinance, no Protected Use may be located within 600 feet of the boundaries of the consolidated site, nor within 300 feet of any other existing Drilling and Production Site within the District. No other habitable structures may be located within 500 feet of the boundaries of the consolidated site. 5. All subsequent gas well development within the Combining District shall be in accordance with the standards and procedures contained within this Subchapter 35.22 and shall be in compliance with any conditions made applicable to such development within the District. 6. The separation distances in Section 35.22.8.A.1 shall not apply to gas well development on the consolidated site. 7. No more than thirty -two gas wells may be developed on a consolidated site within a one -mile square area. 8. All gas well development within the Combining District shall be approved and completed pursuant to the procedures and subject to the standards set forth in Subchapter 35.22. 35.7.16.8 Application Requirements. The applicant for a Gas Well Combining District shall be the mineral owner or lessee(s) of the land for which application is made. The application requirements for a consolidation permit set forth in Section 35.22.4.0 shall apply to a request to establish a Gas Well Combining District. In addition, the applicant shall include the following: 1. Proof of notice to each surface owner within the proposed boundaries of the District; 2. The proposed boundaries of the Combining District; 3. Written verification of the application; 4. Identification of the boundaries of each base zoning district within the proposed combining district; and 5. A draft Combining District Plan containing the elements described in Section 35.22.7.16.5(4). 35.7.16.9. Amendments. A. Following approval of a Final Gas Well Development Site Plan pursuant to Subchapter 35.22, the boundaries of the consolidated site designated in the Combining District Ordinance shall be deemed amended to include such area, without the necessity of amending the Combining District, provided that such boundaries are consistent with the Combining District Plan and are necessary only to accommodate the proper layout of the drilling and production facilities to be included within the consolidated site. B. All other changes to the location of the consolidated site or the number of wells contained therein shall require amendment of the Combining District. Any proposed amendment to an approved Final Gas Well Development Site Plan or development plat that is submitted for the purposes of relocating the boundaries of the consolidated site or existing Drilling and Production Site within the District shall be processed as a request for amendment of the Combining District. 35.7.16.10 Expiration of Authorization to Develop Gas Wells within Combining District. The authorization to develop gas wells within a Gas Well Combining District on the consolidated site shall be suspended (i) if no application for a Preliminary Gas Well Development Site Plan has been submitted within two years of the date of approval of the District, or (ii) within 5 years, if all site plan and permit applications have expired and no gas well has been established on the site. The Planning and Zoning Commission shall recommend and the Council shall decide whether the Combining District should be removed from the property, or whether the authorization to develop gas wells on the consolidated site should be reinstated with or without conditions. 35.7.16.11 Application for Designation of Existing Drilling and Production Site. A. The mineral owner or lessee may request rezoning of a tract containing one or more approved gas well drilling and production sites to a Gas Well Combining District in order to consolidate gas wells on a Drilling and Production Site that meets the standards of this Section. B. The mineral owner or lessee of an approved Drilling and Production Site within an existing PD or MPD zoning district or of such site approved pursuant to a Specific Use Permit may apply to convert such Drilling and Production Site and associated land to a Gas Well Combining District. C. Upon approval of a Gas Well Combining District designating an existing Drilling and Production Site as a consolidated site, all rules contained in subsection 35.7.16.7 shall apply, except as otherwise set forth in the ordinance establishing the Combining District. 11 Exhibit 4 Amend Subchapter 35.16.7. Lots, Access and Common Areas as follows: A. Amend the catchline for Subchapter 35.16.7, which currently reads as, "Lots, Access and Common Areas. ", to read as follows: "Lots, Access, Common Areas and Gas Well Notification Disclosure." B. Amend Section 35.16.7, Lots, Access and Common Areas, to include new Sections 35.16.7.E., which shall read as follows: E. Gas Well Notification Disclosure. A Plat that proposes single- or multi - family residential lots that will be within 1,200 feet of one or more gas well pad sites, except for those gas well pad sites and their subsurface mineral interests which are eliminated through plugging and abandonment, the Developer shall be required to provide all of the following disclosure notifications to all lot purchasers: 1. A note shall be placed on the Plat identifying the gas well pad site(s) and those proposed lots that are within 1,200 feet of the gas well pad site(s). Said note shall also include a statement that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility of new wells that may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and /or re- fracture stimulated in the future. 2. There shall be depicted on the Plat, or in a separate map, the location of the gas well pad site(s) in relation to the lots that are within 1,200 feet of a gas well pad site(s). 3. A provision shall be included in the Declaration of Restrictive Covenants that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility that new wells may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and /or re- fracture stimulated in the future. 4. A Notice document that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility that new wells may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and/or re- fracture stimulated in the future, shall be recorded with the Denton County Clerk's Office. The form of the disclosure notifications required in subsections E.3. and E.4. shall be approved by the City Attorney. Exhibit 5 Zoning Amendments to Section 35.5 Amend Subchapter 35.5, Zoning Districts and Limitations, as follows: A. Amend Section 35.5.1, Rural Districts, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells B. Amend Section 35.5.2, Neighborhood /Residential, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells," and delete the "SUP" designation for the NR -3, NR -4, NR -6, NRMU -12 and NRMU districts for the same category. C. Amend Section 35.5.3, Downtown Diversity Core, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2. for the industrial land use category "Gas Wells," and delete the "SUP" designation for the DR -1, DR -2, DC -N and DC -G districts for the same category. D. Amend Section 35.5.4 Community Mixed Use Centers, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells," and delete the "SUP" designation for the CM -G and CM -E districts for the same category. E. Amend Section 35.5.5 Regional Mixed Use Centers, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells" and delete the "SUP" designation for the RCR -1 and RCR -2 districts for the same category. F. Amend Section 35.5.6, Employment Centers, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells." G. Amend Section 35.5.7, Industrial Centers, subsection 2, Permitted Uses, by substituting the term "Gas Well Development," as defined in Section 35.22.2, for the industrial land use category "Gas Wells." H. Amend Section 35.5.8, Limitations, L (27), to read: "L (27) = Gas well development on new gas well drilling and production sites must be authorized through approval of a Gas Well Combining District pursuant to Section 35.7.16. Gas well development on existing drilling and production sites requires approval of a consolidation permit pursuant to Section 35.22.4. All gas well development is subject to compliance with Subchapter 35.22, Gas Well Drilling and Production." Exhibit 6 NEW OIL AND GAS PIPELINE ORDINANCE Amend Chapter 35 of the DDC to include new Subchapter 35.22A, "Oil and Gas Pipelines ", which shall read in its entirety as follows: Sec. 35.22A.1 - Purpose. The exploration, development, and production of oil and gas in the City of Denton are activities that necessitate reasonable regulation to ensure that all property owners, mineral and otherwise, have the right to enjoy their property and its benefits and revenues while at the same time protecting the City's citizens and others from risks associated with such activities. It is hereby declared to be the purpose of this subchapter to establish reasonable and uniform limitations, safeguards, and regulations for present and future operations related to transporting oil and gas and other substances which are produced in association with oil and gas, within the corporate limits of the City, and to the extent allowed or as may be allowed by state law, the extraterritorial jurisdiction, and to protect the health, safety and general welfare of the public; minimize the potential impact to property and persons; protect the quality of the environment; and encourage the safe and orderly transport of oil and gas resources. Sec. 35.22A.2 - Definitions. All technical and industry words and phrases related to the oil and gas pipelines related to transporting oil and gas and other substances which are produced in connection with oil and gas drilling and production activities not specifically defined shall have the meanings attributable thereto: (1) by other applicable definitions within the DDC; and (2) if not defined by the DDC, then the meaning customarily attributable to by prudent operators in the oil and gas industry. City regulated pipelines means those pipelines within the City that under federal and state rules and regulations are not exempt from City regulations and articles regarding mapping, inventorying, locating or relocating of pipelines, including, but not limited to, pipelines over, under, along, or across a public street or alley, pipelines from the well to the first point of custody transfer or in private residential areas within the boundaries of the City. Pipeline means all parts of those physical facilities through which gas, hazardous liquids, fresh water, salt water, or chemicals move in transportation, including but limited to, pipe, valves and other appurtenance attached to pipe, whether or not laid in public or private easement or public or private right -of -way within the City, including but not limited to gathering lines, production lines and transmission lines. This definition does not include pipelines associated with franchise utilities. Pipeline construction means the initiation of any excavation or other disturbance of property for the purpose of installation, construction, maintenance, repair, replacement, modification or removal of a pipeline. Pipeline or well emergency means a pipeline or well incident that is required to be reported to the RRC, the TCEQ, or any federal, state, or local regulatory agency. Pipeline permit means a permit for the movement of gas, oil, water or other products. Pipeline operator means any person owning, operating or responsible for operating a pipeline. Sec. 35.22A.3 - Oil and gas pipelines technical and permitting regulations. A. General regulations. 1. As determined in the sole, but reasonable, discretion of the City, pipelines may not interfere with or damage existing utilities, including but not limited to: water, sewer or gas lines, storm drains, electric lines or the facilities of any public utilities located in public rights -of -way, utility easements or other City -owned property or in private residential areas. 2. The pipeline operator shall be responsible to grade, level and restore the property affected by pipeline construction to the same surface condition, as nearly practicable, as existed before operations were first commenced within thirty (30) days after completion of the pipeline. 3. The pipeline operator shall construct, repair and /or maintain all pipelines so as to meet or exceed the applicable minimum criteria established by the statutory or regulatory requirements of the state and federal governments for such pipeline. 4. At least ten (10) days prior to the commencement of any pipeline construction, the pipeline operator shall give written mailed notice to all residents, tenants and property owners that are located adjacent to the proposed pipeline. The mailing shall include the operator's publication on pipeline safety. 5. At the time the required pipeline records are submitted to the railroad commission, the pipeline operator shall provide the Department the following information, including GPS information sufficient to locate the pipelines in the future, including the beginning and end points of the pipeline and sufficient points in between the pipeline route and the depth of cover information. This information shall be submitted to the Department in a format compatible with the Department's own GIS system. a. As -built or record drawings of the pipelines. Accuracy of the record drawings shall meet a survey level of one (1) foot to fifty thousand (50,000) feet. The scale of the record drawings shall be a minimum of one (1) inch to forty (40) feet. The drawings shall also be supplied in a digital file format with the location tied to at least one (1) nearby GPS (global positioning system) City monument. If the new pipeline length exceeds one thousand (1,000) feet within the City, the pipeline shall be tied to at least two (2) GPS City monuments; b. The origin point and the destination of the pipeline; c. The substance to be transported; d. A copy of the substance material safety data sheet (MSDS); e. Engineering plans, drawings and /or maps with summarized specifications showing the horizontal location, covering depths, and location of shutoff valves of the subject pipeline. Drawings shall show the location of other pipelines and utilities that are crossed or paralleled within fifteen (15) feet of the pipeline right -of -way; f. Detailed cross - section drawings for all public rights -of -ways and easement crossings on City property as permitted by the City; and g. A list of the names and mailing addresses of all the property owners, residents and tenants adjacent to the pipeline construction. 6. A pipeline operator that transports gas, oil, liquids or hydrocarbons through a pipeline located in the City shall be a member in good standing with the one call system or other approved excavation monitoring system as required by state law. The pipeline operator that transports gas, oil, liquids or hydrocarbons through a pipeline shall contract for service with the selected underground utility coordinating system for a minimum of five (5) years unless there is an agreement to change to an alternate system between the City and the pipeline operator. Said pipeline operator shall maintain such services without interruption for the life of the pipeline permit and as required under this section. 7. At the time of permitting and each year thereafter that the pipeline remains active, each pipeline operator shall provide to the Oil and Gas inspector, the Fire Marshal and the Chief of Police the names, mailing addresses and telephone numbers of at least two (2) primary persons, officers or contacts available on a twenty -four (24) hour basis and at least two (2) alternative persons, officers or contacts to be reached in the event that the primary contacts are unavailable who: a. Can initiate appropriate actions to respond to an emergency; b. Have access to information on the location of the closest shutoff valve to any specific point in the City; and c. Can furnish the common name of the material then being carried by the pipeline Any change in the above information must be provided to the City by contacting the gas inspector prior to such change. 8. Each pipeline operator shall file a copy of all initial or follow -up reports provided to the U.S. Department of Transportation or the RRC on unsafe pipeline conditions, pipeline emergencies or pipeline incidents within the City concurrently with the City. In addition, such pipeline operator shall file any initial or follow -up reports filed with state and federal environmental regulatory agencies pertaining to pipeline releases within the City concurrently with the City. 9. Every pipeline operator shall be required to file with the Department an annual verified report in letter form on or before June 30 of each year to cover a reporting period of the previous June 1 through May 31. Said written report shall contain a statement that the pipeline has no outstanding safety violations within the City as determined in an inspection or audit by either the RRC and /or the U.S. Department of Transportation with regard to any pipeline operating within the City. Alternatively, if there are any safety violations as determined by the RRC and /or the U.S. Department of Transportation that have not been corrected, these shall be described to the City with an action plan to correct the safety violations. Said action plan shall include a timeline for corrective action and the individual or firm responsible for each action. B. City regulated pipelines - peg snit required. 1. City regulated pipelines shall adhere to all standards outlined in section A. Federal and state statutory or regulatory requirements shall apply to pipelines between the well and the point of custody transfer. Prior to the transport of gas, oil, liquids or hydrocarbons, the operator shall provide to the Department certification from a professional engineer registered with the State of Texas that the design and installation of the pipelines meet all state and federal requirements. 2. Prior to pipeline construction and the issuance of notice required in section A.4, a pipeline operator shall obtain a pipeline permit from the City for all City regulated pipelines. Exceptions to this permitting requirement are those pipelines from the well to the first point of custody transfer and for construction necessary to respond to a pipeline emergency. 3. At the same time the operator submits a Gas Well Permit application, the operator shall require the pipeline operator to submit a proposed pipeline route from the well bore to the transmission line, for all City regulated pipelines. 4. The pipeline operator shall be required to submit an application for a pipeline permit to the Department prior to making any offer or initiating any negotiation or action to acquire any easement or other property right to construct, install, maintain, repair, replace, modify, remove or operate a pipeline in private residential areas. 5. The pipeline operator shall backfill all trenches and compact such trenches to ninety -five (959) percent standard density proctor in eight -inch lifts and construct the Pipeline so as to maintain a minimum depth of ten (10) feet below the finished grade except in public rights -of- way, where minimum cover to the top of the pipe shall be at the discretion of the Department based on existing or planned utilities. During the backfill of any pipeline excavations in open cut sections, the pipeline operator shall bury "buried pipeline" warning tape one (1) foot above any such pipeline to warn future excavators of the presence of a buried pipeline. The gas inspector may also require that a proposed or existing pipeline be relocated should it conflict with the proposed alignment and depth of a gravity dependent utility. 6. The pipeline operator shall equip all City regulated pipelines with an automated pressure monitoring system that detects leaks and shuts off any line or any section of line that develops a leak. In lieu of such system, the pipeline operator may have twenty -four (24) hour pressure monitoring of the pipeline system which provides monitoring of the pipeline within the City limits. 7. Review by the gas drilling review committee for all proposed pipelines through private residential areas shall be required prior to the issuance of a permit for the commencement of pipeline construction. 8. A pipeline permit application shall be required as follows: a. Applications for a City regulated pipeline or other activities regulated by this subsection shall be submitted to the Department in a form prescribed by the Department. b. Plans submitted with each application for a pipeline permit shall be in a format approved by the Department showing the dimensions and locations of the pipeline and related items or facilities, as well as all proposed lift stations, pumps or other service structures related to such pipeline and the location, type and size of all existing utilities, drainage, right -of -way and roadway improvements. The plans must additionally show the elevation and location of all known public utilities within fifteen (15) feet of the centerline of the proposed pipeline. Any application that fails to meet these requirements will be returned unfiled to the applicant. c. The following information shall be provided in the application: i. The name, business addresses and telephone numbers of the pipeline operator; ii. The names, titles and telephone numbers of the following: a. The person signing the application on behalf of the pipeline operator; b. The person designated as the principal contact for the submittal; and c. The person designated as the twenty -four (24) hour emergency contact; iii. The origin point and the destination of the proposed subject pipeline; iv. A text description of the general location of the proposed subject pipeline v. A description of the substance to be transported through the proposed subject pipeline; vi. A copy of the substance material safety data sheet (MSDS); vii. Engineering plans, drawings and /or maps with summarized specifications showing the horizontal location, covering depths and location of shutoff valves of the proposed subject pipeline. To the extent that information can be obtained, drawings shall show the location of other pipelines and utilities that will be crossed or paralleled within fifteen (15) feet of the proposed subject pipeline right -of -way; viii. A description of the consideration given to matters of public safety and the avoidance, as far as practicable, of existing habitable structures and private residential areas; ix. Detailed cross section drawings for all public street right -of -way and easement crossings; x. The proposed method or methods to be used for the installation of the pipeline; xi. Methods to be used to prevent both internal and external corrosion; xii. A binder or certificates of all bonds and insurance; and xiii. A proposed alignment strip map showing name and address of all affected property owners. C. Development Review Coininittee (DRC). 1. After the filing of an administratively complete application, the DRC shall review all applications for pipelines located in a private residential area. For other pipeline locations, an administrative conference may be conducted to seek resolution of any substantive, non - resolvable technical issues. If deemed necessary by the City, a third -party technical advisor may be employed. The costs associated with the technical advisor shall be borne by the pipeline operator. Any recommendation by the DRC to the Department is final. 2. If the DRC determines that the City should obtain an independent study or analysis of an application to construct a new pipeline, upon approval by the City Council, the City shall engage duly qualified independent consultant(s) or contractor(s) to conduct such special studies or analyses as required to fully evaluate and to act upon an application for a new pipeline. The actual cost for said consultant or contractor, including the cost of any inspections deemed necessary by the DRC or otherwise required, shall be paid by the pipeline operator. D. Pipeline info ination reporting requireinents. If the pipeline operator has no reporting responsibility to the RRC or the U.S. Department of Transportation and is otherwise exempt from the safety regulations of either of such agencies, the following documents pertaining to the preceding reporting period of June 1 through May 31 shall be furnished to the Department: 1. Copies of internal reports of responses to pipeline emergencies; 2. Current operations and maintenance logs; and 3. Current emergency response plan. E. Abandoned pipelines. 1. All pipelines shall be maintained in an active condition unless abandoned according to applicable state and federal regulations. The pipeline operator shall notify the Department within thirty (30) days of abandonment of any pipeline. 2. Reactivation of abandoned pipelines shall require notification to the Department pursuant to the standards and requirements specified in section 35.22.A.3. Reactivation shall require pressure testing for integrity and compliance with RRC and /or United States Department of Transportation regulations. F. Einergency response plans and einergency incident reporting. 1. Each pipeline operator shall maintain written procedures to minimize the hazards resulting from an emergency. These procedures shall at a minimum provide for the following: a. Prompt and effective response to emergencies, including but not limited to the following: i. Leaks or releases that can impact public health safety or welfare; ii. Fire or explosions at or in the vicinity of a pipeline or pipeline easement; and iii. Natural disaster; iv. Effective means to notify and communicate required and pertinent information to local fire, police and public officials during an emergency; v. The availability of personnel, equipment, tools and materials as necessary at the scene of an emergency; vi. Measures to be taken to reduce public exposure to injury and probability of accidental death or dismemberment; vii. Emergency shut down and pressure reduction of a pipeline; viii. The safe restoration of service following an emergency or incident; and ix. A follow -up incident investigation to determine the cause of the incident and require the implementation of corrective measures. 2. Upon discovery of a pipeline emergency or incident, any affected pipeline operator shall as soon as practical communicate to the City's 911 system the following information: a. A general description of the emergency or incident; b. The location of the emergency or incident; c. The name and telephone number of the person reporting the emergency or incident; d. The name of the pipeline operator; e. Whether or not any hazardous material is involved and identification of the hazardous material so involved; and f Any other information as requested by the emergency dispatcher or other such official at the time of reporting the emergency or incident. G. Pipeline repairs and maintenance. 1. All repairs and maintenance of pipelines are to be performed in accordance with U.S. Department of Transportation and RRC mechanical integrity requirements. 2. If non - emergency repairs necessitate excavation of a pipeline, the pipeline operator shall send notification to occupants of business establishments and residential dwellings located adjacent to the pipeline to be excavated at least five (5) days prior to commencing such repairs. 3. If above - ground non - emergency repairs that are not routine maintenance are required, the pipeline operator shall send notification to occupants of businesses and residential dwellings located within five hundred (500) feet from the centerline of the pipeline section to be repaired at least five (5) days prior to commencing such repairs. 4. The notice required in subsections (2) and (3) of this section shall be sent by U.S. regular mail, postage prepaid mailed at least five (5) days prior to commencing any non - emergency repair; provided, however, that the pipeline operator may use hand delivery notice as an alternative, at the pipeline operator's discretion. 5. Inspection of the interior of all regulated pipelines shall comply with United States Department of Transportation and RRC rules. H. Protection and painting of structures. A pipeline operator shall keep protected and painted all pipeline risers and all appurtenances related to pipeline construction and operations which are composed of materials which are generally protected or painted. Such operator shall repaint all such items at sufficiently frequent intervals to maintain same in good condition. It shall be a violation of this article for any pipeline operator to permit any pipeline riser and /or appurtenances related to pipeline construction and operations to be in a state of disrepair or to have chipped, peeling or unpainted portions. L No implied grant of use of public rights -of -way, utility easements or other City- owned property. Nothing in this subsection grants permission for the use of any street, public rights -of- way, utility easements, or City -owned property. In the event a pipeline operator wishes to undertake any pipeline construction on, over, under, along, or across any public rights -of -way, utility easements or other City -owned property, the pipeline operator shall apply for and execute a written agreement with the City governing the terms and conditions for such use; obtain all required permits and comply with any other applicable provisions of the DDC. J. Expiration of pipeline peg init. If construction of a pipeline has not commenced within one (1) year of the date of issuance of the pipeline permit, or if the pipeline has not been completed and the surface restored within two (2) years, the pipeline permit shall expire; provided, however, that the Director may grant an extension of time not to exceed an additional one (1) year if the D determines that weather or other unexpected physical conditions justify such an extension. K. No assumption of responsibility by City. Nothing in this subsection shall be construed as an assumption by the City of any responsibility of a pipeline operator of a pipeline not owned by the City. L. It is the joint and several responsibility of the owner and the pipeline operator of any and all pipeline to maintain the markers in accordance with this article. The location of all new or replacement pipe and pipelines shall be marked by the owner(s) thereof or by the person installing or operating such pipelines as follows: 1. Marker signs shall be placed at all locations where pipe or pipelines cross property boundary lines and at each side of a public street or road right -of -way which the pipe or pipeline crosses; 2. The top of all marker signs shall be a minimum of four (4) feet above ground level, and the support post must be sufficient to support the marker sign and shall be painted yellow or such other color as may be approved by the director of transportation and public works or his designee; 3. All marker signs shall be a minimum of twelve (12) inches square and shall be marked as "gas pipe line;" 4. All marker signs shall contain the name of the owner and operator of the pipeline and a twenty- four -hour local contact number; 5. Pipelines shall be marked along their entire length with a buried metal wire and metallic flag tape; 6. All signs shall also contain an 811 designation "Call Before You Dig" statement; and 7. The pipeline operator shall annually replace signage that has been lost, damaged or removed. M. Annually, all pipeline operators will provide affected landowners, public official and emergency providers with appropriate public awareness information as outlined in API 1162. o:A2014 gas well ordinance ainendinents \ainendinent to ordinance 2013 -248 to add penalty and interest to gas well fees -clean 12- 8- 14.docx Exhibit 7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NO. 2013 -248 RELATING TO PLANNING AND DEVELOPMENT FEES AS IT CONCERNS GAS WELL DRILLING AND PRODUCTION IN THE CITY OF DENTON AND ITS EXTRATERRITORIAL JURISDICTION, AND ROAD DAMAGE REMEDIATION FEE CALCULATIONS DUE TO DAMAGE TO CITY OF DENTON ROADWAYS FROM GAS WELL DRILLING AND PRODUCTION ACTIVITIES IN THE CITY; ADDING PRODUCTION MONITORING FEES; AND SETTING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2013 -248, the City Council of the City of Denton, Texas established certain fees related to gas well drilling and production in the City of Denton and the extra - territorial jurisdiction of the City, and also established a formula for the calculation of road damage remediation fees in the interest of recovering costs associated with damage to city roadways from gas well drilling and production activities; and WHEREAS, the City Council deems it in the public interest to authorize the assessment of penalties and interest in the event the fees authorized in Ordinance No. 2013 -248 and the Denton Development Code, Subchapter 22 are not timely remitted to the City; and WHEREAS, the City Council further deems it in the public interest to assess production monitoring fees incurred by the City in retaining any third party consultant to monitor the function of all equipment that may lead to fugitive emissions; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The fifth preamble paragraph in Ordinance No. 2013 -248 is amended to strike the words "enter into a Road Damage Remediation Agreement" and substitute therefor the words "pay Road Damage Remediation Fees." SECTION 3. The seventh preamble paragraph in Ordinance No. 2013 -248 is amended to strike the words "Road Damage Remediation Agreement" and substitute therefor the words "Road Damage Remediation Fees." SECTION 4. Ordinance No. 2013 -248 is amended to add a new Section 4 as follows: "Production monitoring fees incurred by the City in retaining any third party consultant to monitor the function of all equipment that may lead to fugitive emissions is hereby adopted. Calculations for such fees are set forth in Exhibit `B." SECTION 5. Ordinance No. 2013 -248 is hereby amended to add a new Section 5 as follows: "Development fees are due and owing at the time of application and delinquent if not o:A2014 gas well ordinance ainendinents \ainendinent to ordinance 2013 -248 to add penalty and interest to gas well fees -clean 12- 8- 14.docx paid at that time. Inspection fees and production monitoring fees are due and owing on or before the 3oth day following any inspection, are delinquent thereafter, and will be billed to the operator of record. Road Remediation Fees are due and owing at the time the operator of record notices the City of intent to perform any activities specified in Subchapter 22 of the Denton Development Code; or, in the event of failure to notice the City of activities specified in Subchapter 22 of the Denton Development Code, at the time the operator embarks upon such specified activities, and are delinquent thereafter. To cover a portion of the administrative costs of collecting past due balances, a late payment charge of $20.00 shall be assessed on the fifth business day following the due date. Furthermore, interest shall be assessed on any past due account balance (excluding late payment charges) that remains unpaid at the time of each monthly billing calculation. The interest provided for and assessed shall be due and payable on the due date of the month's billing statement. The interest charge shall be 1% per month on all past due charges and account balances unpaid at the time of the succeeding month's billing calculations; however, the interest charge provided for herein shall not exceed the legal rate of interest, and the City intends only to assess, charge and collect such interest rate that does not exceed the highest lawful rate." SECTION 6. Sections 4 and 5 of Ordinance 2013 -248 are respectively renumbered to Section 5 and Section 6. SECTION 7. This ordinance shall become effective immediately. PASSED AND APPROVED this, the day of 12014. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CHRIS WATTS, MAYOR Page 2 o:A2014 gas well ordinance ainendinents \ainendinent to ordinance 2013 -248 to add penalty and interest to gas well fees -clean 12- 8- 14.docx EXHIBIT `B" PRODUCTION MONITORING FEES Production Monitoring Fees shall be assessed under the following criteria: Priority High Moderate Frequency of Pad Site Inspections Location of Pad Site- 250 feet or less from Protected Uses more than 250 feet, less than 1200 feet Low Priority more than 1200 feet Quarterly Bi- Annually Annually 0 Separation distances shall be measured from the boundary of the Drilling and Production Site identified on the: (1) Gas Well Development Plat or Site Plan or (2) Final Gas Well Site Plan; in a straight line, without regard to intervening structures or objects, to: i. the closest exterior point of any structure occupied by a Protected Use; ii. any lot line of an undeveloped lot(s) in a City- approved platted residential subdivision; iii. any lot line in a residential subdivision plat that proposes to encroach upon an existing Drilling and Production Site; or iv. a freshwater well currently in use at the time a complete application for a gas well development [preliminary ?] site plan is filed. Assessment of fees per Pad Site 1 Well on Pad Site 2 -3 Wells on Pad Site 4 -6 Wells on Pad Site 7 -9 Wells on Pad Site 10 -12 Wells on Pad Site $1350 per Pad Site $2200 per Pad Site $3000 per Pad Site $4500 per Pad Site $6000 per Pad Site Compressor /Processing Pad Site $7500 per Pad Site Reinspection Page 3 $1350 per Well Exhibit 8 Questions & Answers From Joint Planning and Zoning and City Council Meeting of December 16, 2014 Regarding Gas Well Ordinance Amendments Posted to the City Website What exceptions apply to consolidation permit requirements and how many applications are currently pending? Answer: The purpose of the proposed draft amendments is to require nearly all applications for new gas wells to conform to consolidation site standards. Exceptions to consolidation permit review are listed in Chapter 22, section 35.22.4.B.2. The principal exceptions are for gas well permits that were issued prior to the city's moratorium ordinance and remain in effect, and gas well permit applications that were pending prior to the enactment of the moratorium. What is the timeline to obtain a gas well permit? Answer: Since most gas well permits are requested on existing sites, the average timeline to obtain a gas well permit will likely be approximately 90 days. The estimate presented during the joint public hearing indicated approximately 145 days for a legislative review and approximately 120 days for an administrative review. These estimates, however, could be shortened if the applicant's response to staff review comments does not utilize the entire time allocation to as little as 80 -105 days, depending on the type of review needed. Do consolidation permit requirements apply in the extraterritorial jurisdiction (ETJ)? Answer: They apply indirectly, for gas well leases that straddle the city boundaries only. Because consolidation permit review applies to all land subject to contiguous mineral leases, gas well drilling and production sites in the ETJ may be considered for a consolidated site at the request of the applicant. If existing sites within city limits are constrained by protected uses, it may be to the benefit of all parties to locate a consolidated site in the adjacent ETJ. If so, the City and the operator could enter a development agreement outlining the respective obligations of the operator and the City. Describe the status of the U.S. Environmental Protection Agency (EPA) regulations for flaring, flowback, and green completions and identify whether the January 1, 2015 deadline is holding. Answer: The EPA New Performance Standards for Crude Oil and Natural Gas Production, Transmission and Distribution became effective on January 1, 2015. Further, on December 19, 2014, the EPA clarified and finalized some updates to its 2012 New Source Performance Standards for the oil and natural gas industry. The amendments respond to requests for clarification and issues raised in administration petitions for reconsideration but did not change the emission reduction green completions in the 2012 rules. The 12 -19 -14 updates: ➢ Provided additional detail on requirements of handling of gas and liquids during well completion operations; ➢ Clarified requirements for storage tanks; ➢ Defined low - pressure wells; ➢ Clarified certain requirements for leak detection at natural gas processing plants; ➢ Updated requirements for reciprocating compressors; and ➢ Updated the definition of "responsible official." The EPA identified two distinct stages of a well completion operation known as "flowback," with specific requirements for handling gas and liquids during each stage, including clarifying when green completion equipment must be used. The initial flowback stage extends from the beginning of flowback and ends when it is technically feasible for "green completion" equipment to function. The next stage is separation flowback and in this stage, special equipment separates gas, liquid hydrocarbons, and water that come from the well. Wells subject to green completion requirements must begin using green completions no later than Jan. 1, 2015. Wells not subject to these requirements, such as exploratory wells, must flare the gas during separation. Are open pits prohibited? Answer: The city did enact provisions in Ordinance 2013 -014, dated January 15, 2013, prohibiting open pits and requiring closed -loop mud systems. No new open pits have been installed since this date. Can the City prohibit compressor stations? Answer: No, cities cannot prohibit compressor stations. Compressor stations are facilities located along the U.S. interstate natural gas pipeline network. They compress natural gas to a specified pressure, thereby allowing it to continue traveling along the pipeline network to the intended recipient. The entity that builds the compressor station is considered a "utility provider" with condemnation powers under the Texas Utilities Code. Compressor stations are built in accordance with the safety standards as they appear in the U.S. Pipeline Safety Act. They are generally regulated by the state and federal government, not by municipalities. The City may enact regulations that address aesthetics and other land use issues without violating federal or state law. However, the City may not "zone out" a utility provider from locating a compressor station in the city. The City does regulate setbacks for compressor stations from protected uses. Can the City conduct air and water quality monitoring? Answer: Cities may conduct, and pay for, air and water monitoring. Are the production monitoring inspections surprise inspections or not? If not, can we require that the inspections be surprise inspections? Restaurants and daycare and other businesses have surprise inspections. Why should Gas Well Production Sites be different? Answer: Some businesses are generally open to the public, and members of the public entering on these premises are deemed "invitees." Since these businesses are open to the public at large, so too can inspectors enter on the premises for purposes of conducting inspections. This is not true with Gas Well Production Sites. Members of the public are considered "trespassers" and are not allowed upon these premises. These sites are fenced and usually locked to deny admittance to the site, for reasons of safety and because the general public is not being provided an opportunity to purchase goods or obtain services. While the proposed ordinance revisions at Section 35.22.11 assert that any third party performing Gas Well Production monitoring shall have the same right of entry upon the site as the Gas Well Inspector, nothing in the city's ordinance changes the requirement that a city must gain proper authority to enter a premise to which it is denied access, including by presentation of a locked site. Gaining access under these circumstances requires consent of the owner or an administrative warrant issued by a judge. What remedies are available in the event an operator is found to have malfunctioning equipment during the course of production monitoring? Answer: Section 35.22.11 addresses remedies in the event an operator is found to have fugitive emissions from equipment at a drill site. The primary objective is to require correction of any malfunctioning equipment which is causing the emissions. The City shall notify the operator in writing, as well as state and federal regulatory agencies having jurisdiction to regulate these issues. In the event a state or federal agency issues 2 or more notices of violation per well or drilling and production site during any 12 -month period, within 30 days of the second notice, the operator shall submit to the City a Leak Detection and Compliance Plan with elements as described in the proposed ordinance, including installation or repair of equipment, the submission of a response plan, and the provision of quarterly reports including the evaluation of potential impacts to air, soil, surface water and groundwater. What efforts are underway to promote public education of gas well activities in Denton? Answer: Recent modifications to the Gas Well Inspections Division's website ( www. cityofdenton .com/gaswellinspections) provide a useful tool to educate the general public about gas well activity. The site contains a user - friendly Main Page with simple icons for ease of use and contact information for both division staff members and a 24 -hour hotline (940- 349- 8GAS). A press release highlighting the changes was recently forwarded to various media outlets for publication to assist spreading the word. A one -page fact sheet flyer will summarize the City's gas well program, contacts at the local universities will be used to assist with public outreach, and the City will apply for an Excellence Award from the Texas Municipal League. In addition, home owner associations will be contacted with the intent of spreading notices to help inform citizens about the various methods to obtain gas well activity information. What are the current notification requirements for a well blowout? Answer: The Fire Code requires the fire code official be notified of any unauthorized discharges of hazardous materials under Section 2703.3.1. Additionally, the emergency response plan has a section that specifically addresses emergency notification of public safety personnel during any type of incident. This document is required for any hazardous materials operations and must be submitted to obtain a drilling permit. Emergency notification is made through 911 though it is conceivable notification would be made telephonically with the Fire Marshal. What notification and disclosure requirements are in the draft Gas Well Ordinance amendments that will alert homebuyers that there are gas wells nearby? Answer: A new subsection "E." is proposed to be added to Subsection 35.16.7 that provides the following notification and disclosure requirements: E. Gas Well Notification Disclosure. A Plat that proposes single -or multi - family residential lots that will be within 1,200 feet of one or more gas well pad sites, except for those gas well pad sites and their subsurface mineral interests which are eliminated through plugging and abandonment, the Developer shall be required to provide all of the following disclosure notifications to all lot purchasers: A note shall be placed on the Plat identifying the gas well pad site(s) and those proposed lots that are within 1,200 feet of the gas well pad site(s). Said note shall also include a statement that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility of new wells that may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and /or re- fracture stimulated in the future. 2. There shall be depicted on the Plat, or in a separate map, the location of the gas well pad site(s) in relation to the lots that are within 1,200 feet of a gas well pad site(s). 3. A provision shall be included in the Declaration of Restrictive Covenants that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility that new wells may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and /or re- fracture stimulated in the future. 4. A Notice document that advises lot purchasers of the existence of producing wells on the gas well pad site(s), the possibility that new wells may be drilled and fracture stimulated on the gas well pad site(s), as well as the possibility that gas wells on the gas well pad site(s) may be re- drilled and /or re- fracture stimulated in the future, shall be recorded with the Denton County Clerk's Office. The form of the disclosure notifications required in subsections E.3. and E.4. shall be approved by the City Attorney. Finally, in Section 35.22.8.C.3, the size of the sign that is to be displayed at each Drilling and Production Site has increased so as to provide better visibility. In addition, the sign will now need to include language that the Site may be subject to future drilling and production activity. What standards are in place for reverse set - backs, where an application is made for a residential subdivision or other surface development before any existing gas well drilling and production site has been designated as a consolidated site? Answer: There are no provisions in the draft gas well amendments that address this circumstance. This means that a surface developer could locate the development 300 feet from an existing gas well site, which then could not be designated as a consolidated site thereafter. This should encourage gas well operators to apply for consolidated sites at the earliest opportunity following enactment of the consolidated site regulations. Why not amend the consolidation permit section to provide that appeals from the gas well administrator go directly to the City Council, not the Board of Adjustment? What procedures and standards govern Board decisions? Answer: Chapter 22 permits are deemed to be part of the City's zoning regulations. Under Tex. Loc. Gov't Code, chapter 211, an appeal from an administrative decision by statute must be made to the Board of Adjustment. The Board is a quasi-judicial body, which means that it is vested with greater discretion to make decisions involving matters delegated to it by statute or by City ordinance. Nevertheless, the Board must make its decision on any matter within its jurisdiction under standards prescribed by ordinance. Appeals from gas well administrative decisions, variance requests and special exceptions, are governed first by standards generally applicable to any zoning issue, and further by special standards applicable solely to gas wells. These are found in Chapter 22, Section 14.A of the draft gas well amendments. Decisions of the Board must be made after a public hearing has been held. Six of the seven regular Board members (three - quarters majority) must agree to approve matters within the Board's jurisdiction. What are the remedies available to the City under the Initiative Ordinance banning hydraulic fracturing? Answer: We note that some misinformation has been circulated as to enforcement of the initiative ordinance and there have been suggestions that the City should arrest anyone violating the ordinance. The penalty provision of this ordinance is written, like all City ordinances, as a Class C misdemeanor. Class C misdemeanors are fine only offenses; therefore, neither arrest nor jail time are typically appropriate in the case of a Class C misdemeanor. Additionally, injunctive relief is available and may be appropriate. Should we increase the frequency of the Production Monitoring inspections such that all wells are inspected quarterly? Answer: Staff has proposed that the frequency of Production Monitoring inspections be based on the proximity to "protected" uses. Sites in closest proximity to "protected" uses would have more frequent inspections and sites more distant from "protected" uses would have fewer inspections. Staff is of the opinion that this policy encourages operators to locate sites at a greater distance from "protected" uses and that this is the desired result of the community. Staff also believes the proposed inspection schedule addresses the heightened concerns of citizens located in close proximity to gas well sites that equipment shall be required to be in good operating order. The proposed inspection schedule is set forth in an Exhibit to the Amendments to the Gas Well Fee Ordinance. What notification requirements are provided to the public regarding Zoning Board of Adjustment (BOA) meetings? Answer: The BOA meetings are advertised as required by State law and the DDC. The meetings are published in the Denton Record Chronicle. In addition, a notice of each zoning item is provided to every surrounding property owner within 200 feet of the property at issue. Further, although not required, the City sends a courtesy notice to surrounding property owners within 500 feet of the property at issue. Finally, a notice of the BOA's meeting agenda is posted on the bulletin board located at City Hall and posted on the City's internet website. How are surface owners of land subject to a mineral lease notified of an application for a consolidation permit for a new well on an existing drilling and production site? Answer: Currently, Section 4 does not provide for special notice to surface owners. However, the requirements for an application for a Combining District require the operator to show proof of notice to all surface owners of the land subject to the mineral lease. In light of the discussion on this topic, City Staff will amend the consolidation permit application requirements to provide the same notice to surface owners for consideration by the City Council. Consent of the surface owner is not required. As with other administrative permits in the zoning arena, no public hearing is required. Will Gas Well Operators be notified as to the filing of new residential surface plats that encroach within 1,200 feet of the boundary of the Drilling and Production Site? Answer: There is not a notification requirement in the initial draft of the Gas Well Ordinance Amendments. However, Staff will prepare a provision to that effect for Council's consideration. Are the reverse setbacks sufficient to mitigate the impacts on gas well drilling and production? Are the reverse setbacks too great such that there is a deleterious effect on surface development? Answer: The proposed reverse setbacks are 300' for a regular drill site, and 600' for a consolidated site. The propriety of the setbacks is ultimately a policy decision of the City Council. Staff has attempted to strike a reasonable balance between the impacts of the drilling operations and the opportunities of the surface owner to develop the property. It is noted that development not included as a "protected" use would not be bound by the "reverse" setbacks, but could encroach upon the drilling and production site to within the distance limitations of the Fire Code. I'd like to explore why a well is allowed in a flood fringe, but not a flood plain. Are there inherent risks associated with wells in flood plains? If so, why would we allow a well in a flood fringe, which I assume is also classified as an ESA (am I correct about that)? Answer: There might be some confusion about the differences between floodway, flood fringe, and floodplain that requires clarification before further discussing the merits of allowing drilling in the flood fringe. Below are included the definitions as listed in the Denton Development Code. Floodway. Area regulated by federal, state, or local requirements to provide for discharge for the base flow, so that the cumulative increase in water surface elevation is no more than a designated amount within the one hundred (100) year floodplain. A river, channel or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. Noy, inally, the floodway will include the stream channel and that portion of the adjacent land areas required to pass the base flood (100 year flood) discharge without cumulatively increasing the water surface elevation at any point more than one - foot above that of the pre floodway condition, including those designated on the flood insurance rate map. Flood Fringe. The area located within the floodplain and outside the floodway. Floodplain. An area identified by the Federal Emergency Management Agency as possibly being flood prone, or below the immediate flood line (one hundred (100) year floodplain). In other words, FEMA 100 -year floodplain is the land in the floodplain subject to a one - percent or greater chance of flooding in any given year. The floodplain is composed of the floodway and the flood fringe. The floodway is the stream channel and that portion of the adjacent floodplain that must remain open to permit passage of the base flood (a.k.a. 100 -yr flood). Floodwaters generally are deepest and swiftest in the floodway, and anything in this area is in the greatest danger during a flood. The remainder of the floodplain is called the flood fringe, where water may be shallower and slower. Consequently, most communities permit development in the flood fringe if the development is elevated or otherwise protected to the base flood level. Flood Level 4 Flood Hazard Area 0 00 -Year Floadplaiia) ------- - - - - -- ------- - - - -- Floadwa - Frin ge Fringe Stream Clronnel y Normal Water Level Cross - section showing the Floodway and Flood Fringe Unregulated drilling in floodplains poses numerous potential risks such as tanks floating away during flooding events if not properly anchored, contaminants reaching waterways during spills and floods, the removal of vegetative ground cover for the construction of pad sites increasing the chances of sediments and pollutants reaching the waterways without any attenuation, and the elimination of important habitats. However, drilling in the flood fringes, where floodwaters are typically shallower and slower, presents a substantially reduced risk, particularly when appropriate conditions are imposed which reduce these risks. Since 2013, Denton only allows gas well drilling in the flood fringe with the approval of a specific use permit (SUP). Drilling in the floodway is not allowed. In contrast, previous to 2013, drilling in the flood fringe was allowed by right and only drilling in the floodway required a SUP. Additional conditions can be included as part of the approval of SUPS with the intent of further reducing the risks or mitigating for the removal of vegetation or habitat losses when drilling in the flood fringe. In addition to requiring SUPS, the DDC prohibits the placement of storage tanks and separation facilities in the flood fringe. The number of wells in the flood fringe is limited to one well head, and is subject to the approval of a hydrologic and hydraulic engineering study demonstrating no adverse impact on the carrying capacity of the adjacent waterway or increasing the water surface elevation of the floodplain. However, an exception to the SUP requirement is granted when gas wells are drilled directionally (meaning the pad site is outside the floodplain) and have a target location or bottom -hole location that is under the floodway. By definition FEMA 100 -yr floodplains are considered a type of environmentally sensitive areas (ESAs) granting floodplains additional protection. Drilling in ESAs requires a watershed protection permit (WPP) that includes a field assessment of the protected areas and, if necessary, the imposition of additional conditions. Subchapter 22 also establishes the chronological order of approval for gas well sites encroaching into ESAs. Drilling in the flood fringe requires the approval of an SUP, WPP, and gas well site plan before a drilling permit can be issued. The current requirements provide a series of checks and balances through the staff review process and City Council action before drilling in the flood fringe can take place. The requirement of placing storage tanks and separation facilities outside floodplains and limiting the number of wells in the flood fringe, in conjunction with SUPS and WPPs, provides opportunities for reducing risks and requiring mitigating measures. What standards exist to address the adequacy of roadways used to access drilling and production sites? Answer: The transportation route for every Drilling and Production Site is reviewed to calculate the road damage remediation fee that an operator must pay for various activities performed for each well. The roadway condition or adequacy, construction type, and segment length in lane miles are all included in the calculation. The City conducted an extensive engineering study to determine these road impacts. The assessments in the City's Fee Ordinance are based on this study. Does the RRC or TCEQ have cooperative programs or other opportunities to deputize City staff? Answer: The City's stormwater program is not characterized as "cooperative" as asked in the question because it is considered a regulatory program that requires certain actions on the City's part as required by the NPDES component of the Clean Water Act. The City, however, is responsible for inspecting construction sites as a part of the City's stormwater permit, even though these construction sites are permitted through the TCEQ. The City is also taking on a greater inspection role with the Multi - Sector general permit holders in the City (who are also permitted through the TCEQ) as a part of our new City of Denton stormwater permit requirements. In pretreatment, we issue local permits for industrial dischargers into our system, and have associated compliance responsibilities. We also have local permitting and inspection responsibilities for on -site sanitary sewage facilities. These responsibilities, however, represent a situation where the City has existing City of Denton permits that require us to perform these duties as a condition of those COD permits. As a result, the responsibilities have been codified in the code of ordinances and the development code to provide the necessary local authority. The Texas Clean Air Act provides some opportunities for the TCEQ to "deputize" city staff. Regarding "cooperative agreements" between the TCEQ and a municipality, note that the Texas Health and Safety Code provides that a city may be able to contract with the TCEQ for the following specific purposes: (1) to provide for the performance of air quality management, inspection, and enforcement functions and to provide technical aid and educational services to a party to the agreement; and (2) for the transfer of money or property from a party to the agreement to another party to the agreement for the purpose of air quality management, inspection, enforcement, technical aid, and education. City Staff is exploring with TCEQ whether this program is feasible for Denton. Describe the City's current water quality monitoring program. Answer: The Watershed Protection Division Water Monitoring Network consists of sites through the City of Denton and surrounding watersheds. Most of the sites are located within the City of Denton but the divisions monitors several sites upstream and downstream of the City limits to be more protective of our vital water resources. Our monitoring program is required as part of the City's stormwater permit under the Clean Water Act (MS4 Permit — Municipal Separate Storm Sewer System) for illicit discharge detection and elimination. Denton began monitoring several years before our permit became live because of EPA grants we received. This has allowed us to look at some of the long -term trends more closely and determine when we have a problem or impact somewhere. The objective of the Watershed Monitoring Network is to broadly characterize Denton's aquatic resources with a known statistical confidence. (1) Program in place since 2001. Began with 70 sites located around Denton's four primary watersheds (Cooper, Pecan, Clear, Hickory) (2) Now have approximately 85 sites and have added Denton Creek watershed (3) Sites monitored monthly for water quality parameters (pesticides during growing season). (4) Continuous monitoring sites at end of each watershed (5) Ability to respond to illicit discharges as needed Over 1000 sites have been visited in 2014. Water samples (including quality assurance samples) are collected as frequently as every 30 minutes at continuous monitoring stations. Most samples are taken monthly. Are the proposed disclosure provisions of the draft ordinance sufficient notice of gas well activities? How can we get notification and disclosures of gas well activities to renters as opposed to homeowners? What were the notice provisions the City Council previously imposed in 2 zone cases, one in 2013 and one in 2014? Answer: The proposed ordinance revisions require that Surface Plats for single or multi - family residential developments within 1200 feet of gas well pad sites shall note the location of the Pad Site, the existence of well(s), the possibility of new wells, the possibility of more drilling and fracturing, and the possibility of re- working wells. Further, a Declaration of Restrictive Covenants shall advise purchasers of the existence of well(s), the possibility of new wells, the possibility of more drilling and fracturing, and the possibility of re- working. Finally, a Notice document shall be recorded in County Clerk's Office as to existence of well(s), the possibility of new wells; the possibility of more drilling and fracturing, and the possibility of re- working. As to renters, we note some states have provisions in law requiring notice to tenants regarding any number of events, including gas well activities. These provisions are generally written as a "Bill of Rights for Tenants." Such laws typically require landlords to give notice to tenants prior to the execution of leases as to drilling activities in the vicinity, sometimes also requiring notice of drilling activities such as re- working during the term of the lease. The requirements operate by imposing these notice duties upon landlords, who in turn, must insure all required notices are provided to prospective and current tenants. Whether this is feasible in Denton where there are a large number of rental units is an open question. City Staff notes that rental contracts are of a definite term and do not carry the same investment burden and opportunity as home ownership. In addition, there is a high turnover in rental occupancy such that any tenant information will be quickly outdated. Another method of notice to renters would be the City's website, along with public education regarding the interactive mapping system which provides locations of all well sites in the City. The notice provisions enacted by the City Council in two separate zone cases in previous years are similar to the ones proposed in the draft ordinance, and city staff used the notice provisions in those two prior zone cases as a pattern in crafting the draft ordinance revisions. Can the City require realtors to disclose the location of gas well production sites? Answer: The City's authority generally does not reach into this occupation. However, the City has explored some possibilities with the Texas Association of Realtors in Austin with the assistance of the Texas Municipal League. Preliminarily, it appears that the Association may be willing to support some disclosure language in standard real estate contracts. When does an existing drilling and production site become a consolidated site and what exceptions apply to consolidation permit requirements? Answer: Following approval of either a Gas Well Combining District by the City Council or approval of a consolidation permit by the Oil and Gas Well Inspector, a site becomes a consolidated site. In the case of a consolidation permit, the approval is not complete until the operator submits and records a development plat restricting the remainder of the mineral leasehold from future gas well development. The 2013 gas well amendments provided a number of exceptions, the proposed draft amendments are written to require nearly all applications for new gas wells to conform to consolidation site standards. Exceptions to consolidation permit review are listed in Chapter 22, section 35.22.4.B.2. The principal exceptions are for gas well permits that were issued prior to the city's moratorium ordinance and remain in effect, and gas well permit applications that were pending prior to the enactment of the moratorium. Further explain the activities covered by the gas well permit and the completion permit. Answer: The gas well permit is a two -stage written authorization granted by the City of Denton that authorizes drilling, completion and production activities, issued pursuant to rules and regulations of the Denton Development Code. A gas well permit is required for each separate well and for each re -drill of any gas well. The completion permit authorizes completion activities and subsequent production activities either after initial drilling, as the second stage of the gas well permit, or prior to any new completion activities performed to an existing well. What are the procedures for deciding requests by an operator to lessen the requirements for consolidated drilling and production sites due to geological or contractual constraints? Answer: The draft gas well amendments recognize that there are circumstances in which consolidated site standards cannot be fully achieved because of geological conditions or contractual obligations which prevent an operator who holds mineral leases for contiguous land from being able to combine the acreage for purposes of determining the location of a consolidated site. In the case of a consolidation permit application, an operator must apply for a special exception to the Board of Adjustment in order to reduce the acreage under consideration for a consolidated site. The Board will decide the request pursuant to the standards for the special exception in Section 35.22.14.B. If the Board decides that special circumstances require reduction of the area to be considered for the consolidated site, its determination will become the basis for the Oil and Gas Inspector's administrative review. Because this decision could also result in consideration of existing drilling and production sites that are closer to protected uses than the Oil and Gas Inspector has discretion to designate as a consolidated site, an operator may also apply to the Board for a variance to the well set -back standards. The Board, however, may not grant an exception to a setback less than five hundred feet. An operator that applies for a Combining District to establish a new drilling and production site may present geological or contractual impediments to the area under consideration for the District to the City Council as part of the zoning amendment process. Can the City re- insert the recitations concerning air and water pollution into the recital clauses of the revised ordinance? Answer: City Staff crafted the ordinance to avoid encroachment on state and federal law. Further, those specific recitals are not necessary to support any regulations contained in the draft ordinance. How can the City insure objectivity in the selection of third party gas well investigators? Answer: Under the proposed third party inspector scenario, the City (not the operator) would contract directly with a third party to conduct gas well inspections. The third party gas well inspector would serve as an agent of the City, be paid by the City and act at the City's direction. The operator would have no contractual relationship with the third party gas well inspector and no ability to direct how or when such inspections are conducted. The only connection that the operator would have to the third party gas well inspector is that the cost of the inspections would be passed through from the City to the operator. Additionally, the contract between the City and the third party gas well inspector would be a professional services contract. Such contracts are exempt from the bidding laws and procurement provisions of state law, and would not be subject to those provisions. Exhibit 9 Questions & Answers From Public and Planning & Zoning Commission January 28, 2015 Regarding Gas Well Ordinance Amendments Posted to the City Website A. Public's list of items for inclusion in the Gas Well Ordinance 1. Can we prohibit compressor stations? Answer: See Q &A, Question No. 6, from December 16, 2014 P &Z & City Council Joint Public Hearing. 2. Can we prohibit all pits? Answer: See Q &A, Question No. 5, from December 16, 2014 P &Z and City Council Joint Public Hearing. 3. Can we mandate vapor recovery systems? Answer: See Q &A, Question No. 4, from December 16, 2014 P &Z and City Council Joint Public Hearing. 4. Can we prohibit flaring? Answer: See Q &A, Question No. 4, from December 16, 2014 P &Z and City Council Joint Public Hearing. 5. Can we prohibit venting? Answer: See Q &A, Question No. 4, from December 16, 2014 P &Z and City Council Joint Public Hearing. 6. Can we require operators to use all electric motors rather than diesel powered motors in order to minimize noise to adjacent property owners? Answer: It is not clear whether a regulation such as this is within the City's authority or the state's authority. However, some cities have ventured into this arena to some extent. For instance, the cities of Arlington and Mansfield have enacted provisions requiring the use of electric motors. The Arlington ordinance stipulates that "Electric or diesel - electric hybrid rigs must be utilized for drilling a well located within four hundred fifty (450) feet of a Protected Use. The CD &P Director may authorize the use of alternative rigs in specific cases if it is determined that the project is in substantial compliance with this Chapter." 1 The City of Mansfield adopted a new ordinance in March 2014 that states "An Operator shall use only electricity to power a drilling rig or permanent lift compressors." Mansfield's ordinance further requires that "The electricity shall be provided by the electric delivery utility company utilizing a ground- mounted transformer located on the Drill Site or Operator Site." Like Arlington, the City of Mansfield also considers the site's distance from a Protected Use. In fact, per Mansfield's ordinance, "The City may approve an alternative power source or equipment such as diesel generators if the Drill Site or Operation Site is located more than one thousand (1,000) feet from a property with a Protected Use, or if the electric delivery utility company reports that there is insufficient capacity to serve a Drill Site or Operation Site." In addition, "An Operator may use temporary diesel generators during a disruption of electric service until such service is restored, provided that the noise produced by such equipment does not exceed the maximum limits established for the Drill Site or Operation Site." The language difference between the Arlington ordinance and the Mansfield ordinance may be slight, but could carry a lot of significance. The reason for the significance is because most drill rigs today operate as electric rigs. In the majority of instances, however, the electricity is produced on -site through the use of diesel powered generators. These generators provide the electricity to power the rig. As such, under typical current operations, most wells already utilize electric rigs for drilling, regardless of distance to a Protected Use. The City of Mansfield requirements elaborated on similar language from the Arlington ordinance to state how the electricity must be provided. Any consideration for this same requirement in Denton should include language regarding the source of the electricity used to power the rig or compressor. In addition, since utility installations should not prematurely dictate development patterns, any stipulation to bring electric service to a Drilling and Production Site should consider proximity to development or specifically Protected Uses. 7. What are the pros and cons to requiring operators to use pressurized tanks during the hydraulic fracturing process? Answer: With the caveat that hydraulic fracturing is prohibited with the City and the amendments do not change this, City Staff points out that the hydraulic fracturing process requires large volumes of water to complete the well. During this process, water is mixed with sand and other additives before being injected downhole as one method to open the rock formation in order to allow the flow of oil or gas. The water used for this process is generally derived from one of three typical sources: 1) Potable water from a municipal or private supply hydrant; 2) Underground water well; or 3) Diverting allowable surface water resources from an existing reservoir. The water withdrawal rate from a water hydrant or well is not rapid enough to directly supply water used during hydraulic fracturing and surface water typically cannot be replenished fast enough to solely rely on this source. To augment the rapid withdrawal rates, water is typically stored in a holding vessel to provide a high enough volume for the hydraulic fracturing process. PJ Early wells typically utilized large acre fresh water make -up pits or " frack ponds" as the method of storing water. Many of these pits are still utilized around Denton today. As a shift from off - site, large -acre storage pits, operators began utilizing on -site storage systems in the form of frack tanks or pool tanks. The pros and cons of each option are weighed in the following table. Storage System Surface Track Pond" Frack Tank 00 Pros • High volume • On -time construction • Ease of use for multiple sites • Not permanent • On -site storage • Leak resistant • Easily portable • Interconnected tanks • Not permanent • On -site storage • Visible water level 9 Cons • Permanent • Large off -site acreage • Open water • Water transported to site via pipeline • Increased truck traffic • Tank pressurization requires energy (noise ?) • Larger site area or stored off -site • Pump cavitation potential • Could spill • Maximum site area • Assembly time 8. Can we impose a 1500 foot setback for gas wells from all protected uses, including reverse setbacks? Answer: Staff does not recommend the imposition of a 1500 foot setback. While various cities have established setbacks at differing distances, it is typically prudent to determine the distance at which the impacts of gas wells fall off. This includes any impacts on property value or other nuisance factors. Some cities have looked to empirical data in determining this distance. Another consideration is the impact of setbacks on the future growth of the City. The larger the setback, the more limited the growth potential and the less flexibility the City has in supporting comprehensive, well planned development. The propriety of the setbacks is ultimately a policy decision of the City Council. Staff has attempted to strike a reasonable balance between the impacts of the drilling operations and the opportunities of the surface owner to develop the property. Please see also Q &A, Question 420, from 12/16/2014 P &Z & City Council Joint Public Hearing. 9. Can we establish an air monitoring program paid for by the gas well industry? Answer: Please see response to Question B.3. in this Q &A document. Also, Please see also Q &A, Question No. 7, from December 16, 2014 P &Z & City Council Joint Public Hearing. 10. Do property owners receive notice if an operator plans to drill, fracture stimulate, or re -work a well? Answer: The ordinance proposes to keep language requiring notifications to property owners and residents. While the current ordinance requires notice prior to the SUP application, the proposed ordinance will likely require the public meeting prior to filing the co- location application. As written, if a proposed Drilling and Production Site is located within 1,200 feet of a Protected Use, the Operator shall also host a public meeting at a location accessibly convenient to surrounding property owners and residents at least 10 days, but no more than 45 days, prior to either: (1) the public hearing held by the Planning and Zoning Commission in connection with an Gas Well Combining District application, or (2) the submission of a Consolidated Site Permit if a Gas Well Combining District is not required. The Operator must provide written notice of the meeting to all property owners located within 1,200 feet of the proposed Drilling and Production Site. The meeting should provide information regarding planned activities and timelines for the site and must provide an opportunity for citizens to ask questions about the proposed site. All notification and meeting costs shall be borne by the Operator. These notification requirements are in addition to any state - mandated notice requirements for a public hearing before the Planning and Zoning Commission or City Council. Per state law, property owners within 200 feet of the zoning change must receive notice of the hearing. The City of Denton requires courtesy notices to also be mailed to property owners within 500 feet of the proposed zoning change. The public meeting conducted by the operator in accordance with the gas well drilling and production ordinance is an additional requirement to ensure more people are notified, not just those adjacent to the activity. rd It. Can we require 24/7 third party air monitoring paid for by the industry operator? Answer: Please see Q &A, Question No. 7, from December 16, 2014 P &Z & City Council Joint Public Hearing. 12. Can we require a 1500 foot setback, including reverse setback (homes should not be allowed to be built closer than 1500 feet to wells whether or not someone is willing to buy such a home? Typically such a buyer is uninformed about the process of drilling /fracking and buys a home with the expectation that the city has sound regulations on the books). Answer: Staff does not recommend the imposition of a 1500 foot setback. While various cities have established setbacks at differing distances, it is typically prudent to determine the distance at which the impacts of gas wells fall off. This includes any impacts on property value or other nuisance factors. Some cities have looked to empirical data in determining this distance. Another consideration is the impact of setbacks on the future growth of the City. The larger the setback, the more limited the growth potential and the less flexibility the City has in supporting comprehensive, well planned development. The propriety of the setbacks is ultimately a policy decision of the City Council. Staff has attempted to strike a reasonable balance between the impacts of the drilling operations and the opportunities of the surface owner to develop the property. Please see also Q &A, Question 420, from 12/16/2014 P &Z & City Council Joint Public Hearing. 13. Can we require mandatory vapor recovery units during flowback and of compressors including lift compressors? Answer: See Q &A, Question 44, from 12/16/2014 P &Z and City Council Joint Public Hearing. 14. Can we prohibit flaring within city limits? Answer: See Q &A, Question 44, from 12/16/2014 P &Z and City Council Joint Public Hearing. 15. Can we limit hours of operation to 9 -5 on weekdays and eliminate on weekends so that residents may enjoy the comfort and quiet of their homes at the times when they are most likely to be home? Answer: Several surrounding municipalities place time or curfew restrictions on various activities. Five municipalities were compared based on the similar make -up of the community and history of drilling. The Barnett Shale municipalities with dense urban areas and a large number of wells generally include Denton, Arlington, Fort Worth, Grand Prairie, and Mansfield. Several additional communities in Johnson County and Wise County, such as Burleson, Cleburne, Decatur, and Bridgeport, are home to a large number of wells; however, the populations for these towns are not scalable to the five cities used in the comparison. 9 In nearly all instances of curfew limits for the five cities, the drilling and flowback stages are permissible 24 hours a day and seven days a week. Well integrity or formation pressure issues and other dangers could arise during these two stages if work activities were required to cease at an arbitrary time during the operation. These two stages are frequently cited as the points in well development that are most time sensitive. As a result, for several well safety reasons, these two stages occur without curfew restrictions. The following outline describes the respective ordinance prescribed time restrictions for various activities. In addition, for each municipality, the definitions of daytime and nighttime are provided. 1. Denton A. Time Restrictions 1) Fracing operation shall occur during daylight hours 2) Unless the Operator has notified the Oil and Gas Inspector that fracing will occur before or after daylight hours to meet safety requirements B. Definitions 1) Daytime: The period from 7:00 a.m. to 7:00 p.m., Monday through Friday; and from 8:00 a.m. to 5:00 p.m., Saturdays and Sundays 2) Nighttime: The period commencing at 7:00 p.m. and ending at 7:00 a.m., Monday through Friday and from 5:00 p.m. to 8:00 a.m., Saturdays and Sundays. 2. Arlington A. Time Restrictions 1) Drilling allowed 24/7, except Thanksgiving and Christmas Day 2) Site preparation, well servicing, truck deliveries of equipment and materials, fracing, and other related work limited to hours of 7 a.m. to 6 p.m., CST and 7 a.m. to 8 p.m. CDT, Monday through Saturday 3) All open hole formation or drill stem testing shall be during daylight hours 4) The City Council may restrict the hours of operation of vehicles B. Definitions 1) Daytime: The period from 7:00 a.m. to 6:00 p.m. Central Standard Time and 7 a.m. to 8 p.m. Central Daylight Saving Time. 2) Nighttime: The period between 6:00 p.m. and 7:00 a.m. Central Standard Time and 8 p.m. to 7 a.m. Central Daylight Saving Time. 3. Fort Worth A. Time Restrictions 1) No construction activities involving excavation of, alteration to, or repair work on any access road or pad site shall occur during nighttime hours or at any time on Sunday. on 2) Truck deliveries of equipment and materials associated with drilling and /or production, well servicing, site preparation and other related work limited to daytime hours 3) Other than mobilization and demobilization and advancing the bore hole, no other activities shall be allowed on the well site on Sundays. 4) All open hole formation or drill stem testing shall be during daytime hours. 5) Formation fracture stimulation operations shall be during daytime hours. 6) Workover operations restricted to daytime hours. B. Definitions 1) Daytime: means the period from 6:00 am to 7:00 pm. 2) Nighttime: means the period between 7:00 p.m. and 6:00 a.m. 4. Grand Prairie A. Time Restrictions 1) Work hours for site development, truck deliveries of equipment and materials associated with drilling and /or production, well servicing, site preparation and other related work limited to daytime. 2) Deliveries of pipe, casing and heavy loads limited to daytime hours. 3) Flowback operations performed during daytime hours, unless the City approves during non - daytime hours. 4) All open hole formation or drill stem testing shall be during daytime hours. 5) Formation fracture stimulation operations shall be during daytime hours. 6) Workover operations restricted to daytime hours. 7) During nighttime, the operation of vehicle audible backup alarms prohibited. 8) Seismic testing limited to the hours of 8:00 am until 5:00 pm and not on weekends or City holidays. 9) Drill stem testing done during daytime hours. B. Definitions 1) Daytime: means the period from 7:00 am to 7:00 pm. 2) Nighttime: means the period between 7:00 p.m. and 7:00 a.m. 5. Mansfield A. Time Restrictions 1) No construction activities shall occur during nighttime hours. 2) Well servicing operations and any deliveries to the site or a line compressor facility shall occur between the hours of 7:00 a.m. to 7:00 p.m., Monday- Friday, and 9:00 a.m. to 6:00 p.m., Saturday and Sunday. 7 3) Mobilization and demobilization of equipment used for drilling and related operations permitted only during daytime hours. 4) Workover and fracturing operations restricted to daytime hours. 5) Drill stem testing shall be done during daytime hours. B. Definitions 1) Daytime: means the period from 7:00 am to 7:00 pm. 2) Nighttime: means the period between 7:00 p.m. and 7:00 a.m. After careful consideration of the comparable Barnett Shale ordinances, reasonable limits to on- site activities seem typical. The most common curfew limits restrict activities during nighttime hours and allow all activities during daytime hours. 16. Can we require the mandatory lining of pits? Answer: The City enacted provisions in Ordinance 2013 -014, dated January 15, 2013, prohibiting open pits and requiring closed -loop mud systems. No new open pits have been installed since this date. In addition, Ordinance 2013 -014 requires that all pits shall be lined and shall be designed, constructed, and installed in accordance with the liner standards set forth by the Railroad Commission (RRC). The RRC mandates that pits should be constructed of soil material which is capable of achieving permeability of 1 x 10 -7 cm/sec or less when compacted. To achieve the RRC's put design requirements, in areas where clay beds do not occur at the land surface, importing off -site soils with high clay and silt content could be considered. In most circumstances, artificial liners are the best alternative. 17. Can we require the use electric, not diesel, generators throughout the drilling and production process? Answer: Please see Question A.6 in this Q &A document. 18. Should the new ordinance provide for financial payments to those living and working 2000 feet of a fraced site as nuisance compensation? Answer: Staff is of the opinion that this is not advisable. Whether a nuisance exists, whether it is substantial enough to warrant compensation and what amount of compensation is appropriate are factually intensive issues that are not amendable to a solution through legislation. Generally, these are issues between the operator and any individuals specifically affected which should be handled between those parties, with the assistance of our court system, if necessary. 19. Can we require immediate notification of the City and the TCEQ of any mishap /accident and provide for a fine if this does not happen? Answer: The City has requirements for notification. Please see Q &A, Question 411, from 12/16/2014 P &Z & City Council Joint Public Hearing. The International Fire Code is adopted with local amendments by the City Council. These provisions contain penal provisions for failure to comply with ordinance requirements. TCEQ sets its own rules, but City Staff notes, depending on the circumstances, appropriate state and federal agencies may be notified by the City. E'? 20. Can we prohibit compressor stations allowed within city limits? Answer: See Q &A, Question 46, from 12/16/2014 P &Z & City Council Joint Public Hearing. 21. Can the City Council, and not the ZBA, be allowed to grant variances /exceptions? Only council should be allowed to do that since it is directly responsible to the voters. Answer: See Q &A, Question 414, from 12/16/2014 P &Z & City Council Joint Public Hearing. 22. In reference to 35.22.8.B.6, there is no designation made for the type of dehydrator that should be used. Please see the following EPA website and amend the ordinance to require zero emissions dehydrators so that methane emissions, VOCs, and HAPs are eliminated. http: / /www.epa.2ov /2asstar /documents /zeroemissionsdehy.pdf . Answer: City Staff has included in the Gas Well Ordinance amendments a requirement that gas well operators follow all federal and state laws in connection with their gas well drilling and production operations. 23. Are tank farms allowed or beneficial? Answer: Yes, tank farms are allowed. In fact, we currently have one "tank farm" location in the City that is contained within Robson Ranch. This term is not an industry name, but rather a unique way to identify this particular site. The benefit of this tank farm is to reduce the truck traffic within the development by piping the water to a centralized facility for a single point of collection. The site is accessed outside of Robson Ranch instead of requiring heavy truck traffic to drive through the community. 24. Are injection wells allowed in the ETJ? Answer: Injection wells are not allowed in the City. Ordinance No. 2013 -014 at 35.22.5.6.n. In the ETJ, the City has only the authority given it by the State of Texas, unlike the City's authority within its corporate boundaries where the City has the power and authority of a home rule city pursuant to the Texas Constitution. As such, the City does not regulate injection wells in its ETJ as being beyond its authority. 25. Should the City consider revising the insurance provisions in the new ordinance to match the insurance requirements in the Flower Mound ordinance? Answer: The City engaged insurance counsel for the specific task of reviewing the gas well situation in Denton, analyzing Denton's current insurance provisions, and making recommendations for any needed amendments to the insurance provisions in the current ordinance. The recommendations of insurance counsel are reflected in the draft ordinance. Staff believes that those recommendations are the most appropriate for the City and for inclusion in the new ordinance. I B. Issues and Questions Raised by the Planning and Zoning Commission 1. I understand that there are challenges to regulating compressor stations because of their status as a public utility. I also understand that the citizens of Denton have spoken out against compressor stations in their neighborhoods, and that compressor stations will further limit our ability as a city to develop our land. We have ample space in Denton located in industrial zones, so I believe that any compressor stations should be located in IC -E or IC -G zoning districts. Answer: At first blush, this may seem like an attractive option. However, please note that the IC -E and IC -G zoning districts are located in different parts of the City, such as the East, Southeast, South and West sides of the City. Further, some of these areas are proximate to single- and multi - family dwellings and other Protected Uses. While the Gas Well Ordinance's 1,200 foot setback applies to compressor stations, it is possible to meet the setback in an IC -E and IC -G zoning district, but still be close to residential dwellings so as to generate complaints. By adopting this limitation as to where compressor stations may locate, we may inadvertently spread complaints and concerns associated with gas well drilling and production to other parts of the City that have not experienced them thus far. 2. The use of lift compressors is a separate issue. Whereas a compressor station is defined as "a facility that compresses natural gas for delivery by pipeline through a transmission pipeline ", a lift compressor is "a mechanized device that compresses gas prior to its introduction into a well for use in lifting well liquids to the surface." They are typically run on diesel engines, which can be loud and disruptive. I believe that all noise from lift compressors should be inaudible from the property line of a protected use, and that any violations be subject to the penalties laid out in chapter 22. Answer: Staff is of the opinion that it is unreasonable to require noise from lift compressors to be inaudible from a property line of a Protected Use. All activities generate some level of noise. Instead, the state and cities regulate noise when the noise rises to a level that reasonable people would consider it to be disturbing the peace (a factual inquiry) or to a level that exceeds 85 dB under state law, which is presumed to disturb the peace. Further, adopting a requirement that noise be inaudible will present enforcement problems, such as in the prosecution of violations in municipal court. For example, the City would have to explain why one noise is prohibited to be heard, yet many others, some which may be louder than lift compressors, are allowed. 3. Air monitoring was suggested in the 2012 ordinance, but we have yet to enact anything. I would like to see the City define a clear method within this ordinance for monitoring the air surrounding gas wells in order to fulfill that promise, and to protect the health, safety, and welfare of the citizens. How will the air be monitored, where will that happen, how often, and who is in charge of paying for that? Answer: Please see Q &A, Question No. 7, from December 16, 2014 P &Z & City Council Joint Public Hearing. Staff is of the opinion that the City can conduct air monitoring and pay for air monitoring. It should be noted that Staff is presenting a "production monitoring" program to the Council for consideration in these ordinance amendments. The program may accomplish many 10 of the objectives of the air monitoring program some desire. It will monitor for fugitive emissions from equipment operated by the gas well companies. Staff has received a quote from the environmental professional who is conducting the air monitoring program in Flower Mound for this work in Denton. The program would require the operator to bear the costs of the program. The inspection schedule is set forth in the fee ordinance, which is part of the gas well amendments under consideration. Please see Q &A, Question No. 9, from December 16, 2014 P &Z & City Council Joint Public Hearing for more detail. 4. What exactly are the EPA standards for venting /flaring? Answer: On April 17, 2012, the U.S. Environmental Protection Agency (EPA) issued cost - effective regulations to reduce harmful air pollution from the oil and natural gas industry while allowing continued, responsible growth in U.S. oil and natural gas production. The final rules include the first federal air standards for natural gas wells that are hydraulically fractured, along with requirements for several other sources of pollution in the oil and gas industry that were not previously regulated at the federal level. A key component of the final rules is expected to yield a nearly 95 percent reduction in VOCs emitted from gas wells each year. This significant reduction would be accomplished primarily through the use of a process known as a "reduced emissions completion" or "green completion" to capture natural gas that currently escapes to the air. During this process, special equipment separates gas and liquid hydrocarbons from the flowback that comes from the well as it is being prepared for production. The gas and hydrocarbons can then be treated and used or sold, avoiding the waste of natural resources that cannot be renewed. Since January 1, 2015, operators must capture the gas and make it available for use or sale, which they can do through the use of green completions. Green completions are not required for: 1) New exploratory ( "wildcat ") wells or delineation wells (used to define the borders of a natural gas reservoir), because they are not near a pipeline to bring the gas to market. 2) Hydraulically fractured low - pressure wells, where natural gas cannot be routed to the gathering line. Operators may use a simple formula based on well depth and well pressure to determine whether a well is a low - pressure well. 3) Owners /operators must reduce emissions from these wells using combustion during the well - completion process. Pneumatic controllers used at a well site are limited to no more than an emission rate of six (6) cubic feet of gas per hour at an individual controller. New storage tanks with VOC emissions of 6 tons a year or more must reduce VOC emissions by at least 95 percent. The EPA expects this will generally be accomplished by routing emissions to a combustion device. The final rule also retains the existing 1- ton -per year benzene compliance option for large glycol dehydrators, meaning operators may reduce benzene emissions from large dehydrators to less than 1 ton per 11 year as an alternative to reducing total air toxics emissions by 95 percent. Both existing and new small glycol dehydrators must meet a unit - specific limit for emissions of BTEX (benzene, toluene, ethylbenzene and xylene) that is based on the unit's natural gas throughput and gas composition. These rules apply only to sources that are considered "major sources" of air toxics. A major source annually emits 10 or more tons of a single toxic and 25 tons of a combination of toxics. Also, see Q &A, Question 44, from 12/16/2014 P &Z and City Council Joint Public Hearing. 5. How exactly are home buyers being notified of their proximity to gas wells? Answer: See Q &A, Question 410, from 12/16/2014 P &Z & City Council Joint Public Hearing. 6. How short of notice will be given prior to accessing gas well pad sites for inspection? Answer: The City conducts two inspections for each gas well pad site per year, once in the Spring and the other in the Fall. A written notice is sent to each gas well operator informing them of the upcoming inspections. The written notice also requests a reply confirmation that the gas well operator consents to the inspection. Thereafter, the City will create an internal inspection schedule for the Gas Well Inspectors to follow in performing the inspections. No additional notice is provided to the gas well operators once the gas well inspectors commence their inspection per their internal inspection schedule. The only exception to this inspection process involves EagleRidge, who requested to be present for each inspection at their gas well pad sites. 7. How exactly are we incentivizing operators to co- locate? Please clarify what the ordinance provides. Answer: The ordinance requires any operator seeking a new well to either seek a combining district if it is a new pad site (see 35.22.3) or a consolidation permit if it is an existing pad site (see 35.22.4). Further, a consolidated pad site establishes an enhanced reverse set -back of 600 feet (as opposed to 300 feet for a regular pad site) which will likely result in fewer conflicts with surface activities. Finally, City Staff understands that consolidated sites may be more economical and favored by operators in many circumstances. 8. Freshwater pits are the only pits allowed. Please define "freshwater. Answer: To be considered fresh water, the water must not contain certain constituents in concentrations that surpass ordinance prescribed thresholds. The following table defines the concentration limits for four constituents. Constituent Concentration Limit Total petroleum hydrocarbons (TPH) 15 mg /L Benzene, Toluene, Ethylbenzene, and Xylene (BTEX) volatile organic compounds (VOCs) 500 �Lg /L Benzene 50 �Lg /L Chlorides 3,000 mg /L 12 Three typical sources of freshwater include: 1) Potable water from a municipal or private supply hydrant; 2) Underground water well; or 3) Diverting allowable surface water resources from an existing reservoir. Pit contents can be tested by the City's watershed protection laboratory in order to ensure compliance with the ordinance prescribed thresholds. 9. Page 5, Item E, items 1 & 3 both use the phrase "lot purchasers ". Could that wording be construed to mean that only the original "home builder" will receive the gas well existence notices? Answer: No. The proposed Gas Well Notification Disclosure provision was drafted to provide notice not only to the initial buyer of a home, but to subsequent buyers as well. Subsequent buyers will be provided notice through one of the following three methods: (1) Declaration of Restrictive Covenants; (2) a Notice document filed in the County Clerk's Office; (3) in the lot survey of the home that is typically included in a purchaser's closing documents. 10. What are the potential impacts to a surface owner in the event a consolidated site is located on his /her property? Answer: There may be potential enhanced impacts on the surface owner in this example. The increased reverse setback of 600 feet from a consolidated site (as opposed to 300 feet from a regular site) may result in restriction of a greater amount of the surface area from development, although uses not defined as "protected uses" would not be so impacted. Further, since multiple wells will be located on consolidated sites, activities may continue for a longer period of time. 11. What are the potential impacts to the City if the "reverse setback" was increased to 1,200 feet or greater? Answer: Please see Question A.8 in this Q &A document. 12. What is the extent of the Gas Well Administrator's authority under the Gas Well Ordinance? Answer: The Gas Well Administrator is an administrative official, which means that he has only the authority granted to him. He has no discretionary power and must issue and deny permits based on the objective criteria contained in the ordinance. Our Gas Well Ordinance, both in its current and proposed forms, is drafted in this manner. The Gas Well Administrator must approve or deny permits, site plans, development plats in accordance with the objective criteria listed for each. He has no power to grant variances. Rather, that power lies with the Zoning Board of Adjustment. Further, an applicant whose application is denied has the ability to appeal the Gas Well Administrator's denial to the Zoning Board of Adjustment. 13 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -115, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development Department CM/ ACM: George Campbell Date: February 17, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as Peterbilt Motors Company Reinvestment Zone No. XII for commercial/industrial tax abatement; establishing the boundaries of such zone; making findings required in accordance with Chapters 311 and 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; providing for repeal; and providing an effective date. BACKGROUND The attached ordinance establishes Reinvestment Zone XII. Under Chapter 312 of the Texas Tax Code, businesses that receive tax abatements must be located within a reinvestment zone, a designated area where economic development is encouraged. Peterbilt Motors Company, a division of PACCAR, plans to expand their current facility located at 3200 Airport Road, in Denton. The property included within the boundaries represents a site of approximately 100 acres situated on the north side of Airport Road and west of Precision Drive. City Council's adoption of the ordinance establishing the reinvestment zone will allow Council to consider a tax abatement agreement with Peterbilt Motors Company. The project includes a 17,500 square foot extension increasing receiving dock doors by 17, an increase of 56 %. PACCAR has approved a project for an expansion, which will include a 17,500 square foot extension increasing receiving dock doors by 17, an increase of 56 %. This improves material flow from trucks into the expanded metering center supporting timely delivery of material to assembly lines. This project also includes a storage system for painted parts, cabs, hoods and sleepers to help balance the product flow from paint to cab trim. ESTIMATED SCHEDULE OF PROJECT If the reinvestment zone and tax abatement are approved, the expansion project is estimated to be completed in mid -year of 2016. PRIOR ACTION/REVIEW At the December 16, 2014 meeting, the Economic Development Partnership (EDP) board reviewed the request and recommended (8 -0) a tax abatement incentive of 70% for eight years. City Council received a briefing on the Peterbilt project at the February 3, 2015 (Closed Session) meeting. FISCAL INFORMATION City of Denton Page 1 of 2 Printed on 2/12/2015 File M ID 15 -115, Version: 1 Establishing the reinvestment zone has no fiscal impact. EXHIBITS Exhibit 1 - Zone Ordinance with Exhibits Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department Respectfully submitted: Aimee Bissett, Director Economic Development Department City of Denton Page 2 of 2 Printed on 2/12/2015 sAlegakour documents\ordinances\1 5\peterbilt exp reinvestment zone ordinance,doe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS DESIGNATING A CERTAIN AR- EA WITHIN THE CITY LIMITS OF DENTON AS PETERBILT MOTORS COMPANY RE- INVESTMENT ZONE NO. XII FOR COMMERCIAL/INDUSTRIAL 'FAX ABATEMENT; ESTABLISHING THE BOUNDARIES OF SUCH ZONE; MAKING FINDINGS REQUIRED IN ACCORDANCE WITH CHAPTERS 311 AND 312 OF THE TEXAS TAX CODE; OR- DAINING OTHER MATTERS RELATING THERETO; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas ("City" or "Municipality") desires to promote the development or redevelopment of a certain contiguous geographic area within its corporate city limits and its jurisdiction by the creation of a reinvestment zone for commercial/industrial tax abatement, as authorized by Tex. Tax Code Ch. 312 (referred to as the "Property Redevelopment and Tax Abatement Act" or the "Act"); and WHEREAS, an industry or business known as Peterbilt Motors Company, a division of PACCAR Inc, a Delaware Corporation has requested tax abatement to expand their current fa- cility located at 3200 Airport Road, in Denton, Texas and build improvements within the area to be designated as Reinvestment Zone XII; and WHEREAS, the City Council desires to create a proper economic and social environment to induce investment of private resources and productive business enterprises in this area of the City, which meets the criteria established under §312.202 of the Act, and to expand primary em- ployment or to attract major investment; and WHEREAS, a public hearing before the City Council was held at or after 6:30 p.m. on February 17, 2015, in the City Council Chambers of the City of Denton at 215 East McKinney Street in the City of Denton, such date being at least seven days after the date of publication of notice of such public hearing and the receipt of written notices of such public hearing by the pre- siding officer of each taxing unit that includes in its boundaries real property that is to be includ- ed in the proposed reinvestment zone, in accordance with §312.201 of the Act; and WHEREAS, such public hearing was held before the consideration and adoption of this ordinance; and WHEREAS, the City, at that hearing, invited any interested citizen or his representative to appear and offer testimony or evidence for or against the creation of the reinvestment zone, the boundaries of the proposed reinvestment zone, whether all or part of the territory described in the notice calling the public hearing should be included in the proposed reinvestment zone, and the concept of tax abatement; and WHEREAS, in accordance with such public notice, all owners of property within the proposed reinvestment zone and all other taxing units and other interested persons were given the opportunity at such public hearing to protest the creation of the proposed reinvestment zone or the inclusion of their property in such reinvestment zone; and WHEREAS, on the 6th day of May, 2014, on or before the holding of the above- mentioned public hearing, the City Council passed Resolution No. 2014-016 establishing guide- lines and criteria governing tax abatement and incentive agreements and stating that the City of Denton elects to become eligible to participate in tax abatement, in accordance with Tex. Tax Code §312.002and such Policy is now in effect and was in effect prior to the public hearing; and WHEREAS, at the public hearing proponents and opponents of the reinvestment zone of- fered evidence in favor and against all matters relating to the creation of the reinvestment zone, and, after hearing this testimony and evidence, the City Council deems it in the public interest to create this reinvestment zone; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct. SECTION 2. For the purposes of this ordinance, the following terms and phrases shall have the following meanings ascribed to them: A. Improvements — Improvements shall include, for the purpose of establishing eligibility under the Act, any activity at the location, including, but not limited to, new construction, recon- struction, renovation and repairs. B. Taxable Real Property — Taxable real property shall be as defined in the 'Texas Property Tax Code and shall not include personal property as defined in the Code. C. Tangible Personal Property — Tangible Personal Property shall be defined as business per- sonal property, excluding inventory and supplies. D. Base Year — The base year for determining increased value shall be the taxable real property value assessed the year in which the 'Tax Abatement Agreement is executed. SECTION 3. 'The City, through its City Council, after conducting the above-mentioned public hearing and having heard such evidence and testimony, makes the following findings and determinations based on the evidence and testimony presented to it: A. The public hearing on the adoption of the reinvestment zone has been properly called, held, and conducted in accordance with §312.201 of the Act and all other applicable laws, and that notice of such hearing has been published as required by law and delivered to the presiding officer of the governing body of each taxing unit that includes in its boundaries real property that is to be included in the proposed reinvestment zone as required by law; and Page 2 of 6 . ........... — . ..... .... wre w mm m mm w m w w.. .... B. Prior to holding the public hearing, the City has adopted, by resolution, the guidelines and criteria governing tax abatement agreements by adopting a City of Denton Tax Abatement Policy, as amended, and the City has elected to participate in tax abatement; and C. The City had jurisdiction to hold and conduct the public hearing on the creation of the pro- posed the reinvestment zone, pursuant to chapter 312 of the Act; and D. The boundaries of the reinvestment zone shall be the area described in the metes and bounds description attached hereto as Exhibit "A" and as shown on the diagram as the outlined area attached hereto as Exhibit "B" and being approximately 100 acres situated on the north side of Airport Road and in the corporate limits of the City of Denton, Texas, Such Exhibits "A" and "B" being incorporated and made a part of this ordinance as if written word for word herein; and E. The creation of the reinvestment zone for commercial/industrial tax abatement with the im- provements expected to be developed by Peterbilt Motors Company would be of benefit to the City and to the land to be included in the zone, with the boundaries as described in Exhib- it "A," after the expiration of the tax abatement agreement entered into under §312.204 of the Act, and the improvements sought are feasible and practical; and F. The reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone, as set forth in §312.202 of the Act, since it is, "rea- sonably likely, as a result of the designation, to contribute to the retention or expansion of primary employment or to attract major investment in the zone that would be a benefit to the property and that would contribute to the economic development of the Municipality;" and G. The reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone as set forth in the Denton Policy for Tax Abatement and the expected improvements in the boundaries of the zone are expected to enhance signif- icantly the value of all taxable real property and tangible personal property located within the reinvestment zone. SECTION 4. Pursuant to §312.201 of the Act, the City, through its City Council, hereby creates a reinvestment zone for commercial/industrial tax abatement encompassing only the area described by the metes and bounds description in Exhibit "A" attached hereto and as shown on Exhibit 11131' attached hereto and such reinvestment zone is hereby designated and shall hereinaf- ter be designated as Reinvestment Zone No. XII, City of Denton, Texas. SECTION 5. Reinvestment Zone No. XII shall be effective as of March 1, 2015, and shall terminate eight years from that date, on February 17, 2023, unless extended for an addition- al five-year term or unless earlier terminated by action of the City Council in accordance with §312.203 of the Act. SECTION 6. To be eligible for tax abatement, a commercial/industrial project shall: Page 3 of 6 . . ............. A. Be located wholly within the zone established herein; B. Meet the requirements of the Denton Tax Abatement Policy; C. Not include property that is owned or leased by a member of the City Council of the City of Denton, or by a member of the Planning & Zoning Commission; D. Conform to the requirements of the City's zoning ordinance and all other applicable laws and regulations; and E. Have and maintain all land located within the designated zone, appraised at market value for tax purposes. SECTION 7. Written tax abatement agreements with property owners located within the zone shall provide the terms regarding duration of exemption and share of taxable real property and/or tangible personal property located on the real property for taxation as approved hereunder, as shown below: A. Duration of exemption from two years to ten years depending on the value of the structures and real property in accordance with the Denton Tax Abatement Policy, beginning with and including January 1, 2017; and B. Share of taxes abated - in the maximum of 70% of taxes on the total value of appraised real property improvements and tangible personal property, excluding inventory and supplies, as more particularly described in the Tax Abatement Agreement between the City of Denton and Peterbilt Motors Company, which are added, provided, however, nothing herein shall prevent any other taxing unit that includes in its boundaries real property that is included in the reinvestment zone from entering into a tax abatement agreement with a different share of taxes abated on the total value of appraised improvements which are added, in accordance with the requirements of chapter 312 of the Act. SECTION 8. Any written agreements authorized under this ordinance must include pro- visions for: A. Listing the kind, number, and location of all proposed improvements of the property; B. Access to and authorizing the inspection of the property by municipal employees to ensure that the improvements or repairs are made in accordance with the specifications and condi- tions of the agreements; C. Limiting the uses of the property, consistent with the general purpose of encouraging devel- opment or redevelopment of the zone during the period that property tax exemptions are in effect; Page 4 of 6 D. Recapturing of property tax revenues lost as a result of the agreement if the owner of the property fails to make the improvements or repairs as provided by the agreement; E. Containing each term agreed to by the owner of the property; F. Requiring the owner of the property to certify annually to the governing body of each taxing unit that the owner is in compliance with each applicable term of the agreement; G. Providing that the governing body of the municipality may cancel or modify the agreement if the property owner fails to comply with the agreement; H. Contain any additional terms and conditions which the City Council deems are necessary, in accordance with §312.205 of the Act, and that are negotiated with the owner of the property. Provided, however, nothing herein shall prevent other taxing units, who include in their boundaries real property within the reinvestment zone, from negotiating terms and conditions that are different from any municipal tax abatement agreement, so long as the mandatory terms and conditions required by §312.205 of the Act are included. SECTION 9. The City Council further directs and designates the City Manager and the Director of Economic Development as liaisons for communication with regard to all matters per- taining to the Zone, including, without limitation, the development of the amendment of the cur- rent Denton 'Tax Abatement Policy if necessary, the negotiation of tax abatement agreements with industries, commercial enterprises, and other businesses eligible for tax abatement under the Tax Abatement Policy and for communication with other taxing entities and the Economic De- velopment Partnership Board. SECTION 10. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 11. If any section, paragraph, clause, or provision in this ordinance, or appli- cation thereof to any person or circumstance is held invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the re- maining portions of this ordinance. SECTION 12. It is hereby found, determined, and declared that a sufficient written no- tice of the date, place, hour, and subject of the meeting of the City Council at which this ordi- nance was adopted was posted and placed and conveniently accessible at all times to the general public at the City Hall of the City for the time required by law, preceding this meeting, as re- quired by the Open Meetings Act, Tex. Gov't Code Ch. 551, and that this meeting was open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered, and formally acted upon. The City Council further rati- fies, approves, and confirms such written notice and contents posting thereof. The City Council further finds that a quorum was present at such meeting. Page 5 of 6 . . ... . ......... .. . . ._'._ I SECTION 13. The contents of the notice of public hearing, which hearing was held be- fore the City Council and before the passage of this ordinance on February 17, 2015, the publica- tion of said notice is hereby ratified, approved, and confirmed. SECTION 14. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY- Page 6 of 6 EXHIBIT A Property Description of Reinvestment Zone XII SITUATED in the City of Denton, Denton County, Texas, and being a tract of land in the JOHN DAVIS SURVEY, Abstract No. 326, the JAMES PERRY SURVEY, Abstract No. 1040, and the EUGENE PUCHALSKI SURVEY. Abstract No. 996 being all of LOT 1, BLOCK A, PETERBILT ADDITION, as shown on plat thereof recorded in Cabinet 14, Slide 195, of the Denton County Plat Records, and all of that certain tract conveyed to PACCAR Inc, by deed rec- orded in Volume 4366, Page 244, of the Denton County Deed Records, and all being more fully described as follows: BEGINNING at a 1/2" square iron rod found in place for the southwest corner of said Lot I and the southeast corner of Lot 1, Block 1, Westpark, as shown on plat thereof recorded in Cabinet C, Slide 127, of said Plat Records, said point being in the north line of Airport Road (State F.M. Highway 1515-90 foot wide right-of-way); THENCE North 0 degrees, 09 minutes West, at 2075.18 feet passing a chain link fencepost for the northwest comer of said Lot 1, Peterbilt Addition, and continuing with the west line of said tract conveyed to PACCAR Inc, and an east line of a remainder of that certain tract conveyed to Evelyn Rayzor Nienhuis, et al, by deed recorded in Volume 3088, Page 712, of said Deed Rec- ords, in all 2582.82 feet to a 5/8" iron rod set for the northwest corner of said PACCAR Inc tract; THENCE North 89 degrees, 49 minutes East with the north line of said PACCAR Inc tract and a south line of said Nienhuis, et al, remainder, 1676.79 feet to a 5/8" iron rod set for the beginning of a curve whose center bears South 0 degrees, I I minutes East, 40.0 feet; THENCE southeasterly with said curve and a northeasterly line of said PACCAR Inc tract and a southwesterly line of said remainder, a distance of 62.83 feet to a 5/8" iron rod set for the end of said curve; THENCE South 0 degrees, 11 minutes East with the east line of said PACCAR Inc tract and a west line of said remainder, passing the southeast corner of said PACCAR Inc tract and the northeast comer of said Lot 1, Peterbilt Addition and the Northwest corner of Precision Drive (70 foot wide right-of-way at this point), continuing with the east line of said Lot 1, Peterbilt Addition, and the west line of Precision Drive, in all 1419.79 feet to a 1/2" square iron rod found in place for the beginning of a curve whose center bears North 89 degrees, 49 minutes East, 397.82 feet; THENCE southerly with said curve and with said east line of Lot 1, Peterbilt Addition, and west line of Precision Drive, a distance of 289.3 feet to the end of said curve; THENCE South 41 degree, 51 minutes East, continuing with said east line of Lot 1, Peterbilt Addition and west line of Precision Drive, 41.6 feet to the most easterly point of said Lot 1, Peterbilt Addition at the point of intersection of said west line of Precision Drive with a north- Page 7 of 6 . . ........... . westerly line of said Airport Road, from which point a V2" iron rod found in place bears North 89 degrees West, 0.16 foot, and said point being on a curve whose center bears South 45 degrees, 01 minute, 36 seconds East, 617.96 feet: THENCE southwesterly with said curve and continuing with an easterly line of said Lot 1, Peterbilt Addition and westerly line of said Airport Road, a distance of 298.05 feet to the end of said Curve; THENCE South 17 degrees, 20 minutes, 20 seconds West, continuing with all easterly line of said Lot 1, Peterbilt Addition and westerly line of Airport Road, 207.6 feet to the beginning of a curve whose center bears North 72 degrees, 39 minutes, 40 seconds West, 527.96 feet; THENCE Southerly with said curve and continuing with an easterly line of said Lot 1, Peterbilt Addition, and westerly line of Airport Road, a distance of 663.92 feet to the end of said curve, from which point a 1/2"square iron rod found in place bears South 66 degrees East, 0.6 foot; THENCE South 89 degrees, 23 minutes, 20 seconds West with the south line of said Lot 1, Peterbilt Addition, and the North Line of said Airport Road, 1131.28 feet to the PLACE OF BE- GINNING, and containing 100.0 acres. Page 8 of 6 I W.14 Me 11 99M ........... NOMM(mr, Page 9 of 6 ...... . .................... uuA �_ _ 3701 7-- �-V- 0 W U) s- Jr W :D fii W (00 4 .j d z X W0 O r. ay a um MI I I X- SCALE, 1"- lk 0 W U) s- Jr W :D fii W (00 4 .j d z X W0 O r. ay a um MI I I X- Nf '115101�1 11 ill Pii` cf H' 'ae r o- di NZ n. v's i Nf '115101�1 11 ill Pii` cf H' 'ae r o- di City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -116, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development Department CM/ ACM: George Campbell Date: February 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the Mayor to execute a Tax Abatement Agreement with Peterbilt Motors Company setting forth all the required terms of the Tax Abatement Agreement in accordance with the terms of Chapter 312 of the Texas Tax Code; setting forth the various conditions precedent to Peterbilt Motors Company, receiving the Tax Abatement; providing for a severability clause; and providing an effective date. BACKGROUND Peterbilt, a division of PACCAR, opened the Denton Plant in 1980 with 83 employees and has sustained growth to employ over 2,700 in Denton in 2014. The Peterbilt Division Office was relocated to Denton from California in 1993, and in 2000, PACCAR Financial relocated their Las Colinas operations to Denton. The Denton plant has expanded its facility twice since 1980 and has continued to upgrade machinery and equipment to remain competitive and to provide the highest quality product to the consumer. These upgrades allowed Peterbilt to consolidate all of its heavy duty truck production in Denton, Texas. Peterbilt is the largest private employer in Denton with a salary /benefit package of over $200 million annually. Peterbilt's growth in 2014 has resulted in a 20% increase in employment and a 32% increase in production levels. These increases have also been the driving force behind similar growth of other businesses in Denton that support Peterbilt: • Elite Manufacturing • Quality Industries • NIC Global • Custom Vehicle Solutions (Rush Enterprises) • ProBilt Services (Custom Truck Upfit) • Active Transportation USA In addition to the growth of these existing businesses, the following companies opened new locations in Denton in 2014 to support the Peterbilt plant. • Commercial Vehicle Group (CSV) (1st Quarter 2015) • ConMet • Larson Group (Peterbilt Dealer) • CEVA Logistics (December 2014) City of Denton Page 1 of 3 Printed on 2/12/2015 File M ID 15 -116, Version: 1 PACCAR and Peterbilt continue to strongly encourage their supply base to open locations in Denton to support their truck operations. PACCAR'S continued commitment to growth in Denton is shown through the investment of $75 M in capital improvements the previous six years and the purchase of an additional 140 acres of property adjacent to the current 100 acre development. PACCAR has approved a project for an expansion, which will include a 17,500 square foot extension increasing receiving dock doors by 17, an increase of 56 %. This improves material flow from trucks into the expanded metering center supporting timely delivery of material to assembly lines. This project also includes a storage system for painted parts, cabs, hoods and sleepers to help balance the product flow from paint to cab trim. This project is scheduled for completion in mid -year of 2016. The tax abatement request before the Council represents an eight -year abatement at 70% each year for a total estimated incentive of $822,736. ESTIMATED SCHEDULE OF PROJECT If approved, the Peterbilt expansion project is scheduled to be completed in mid -year of 2016. PRIOR ACTION/REVIEW At the December 16, 2014 meeting, the Economic Development Partnership (EDP) board reviewed the request and recommended (8 -0) a tax abatement incentive of 70% for eight years. City Council received a briefing on the Peterbilt project at the February 3, 2015 (Closed Session) meeting. FISCAL INFORMATION Considering project improvements that are eligible for tax abatement under our existing policy, the total estimated eligible annual tax revenue is $146,917. The EDP's recommendation of a tax abatement in the amount of 70% for eight years was based on their base qualifications ($25 million investment) plus additional factors for consideration, including: environmental/green building practices; community support and involvement; local preference for contractors and subcontractors; business park location; relationships with local universities; expansion of commerce and primary employment; attraction of major investment and the expansion of an existing facility. If valuations result as proposed, Peterbilt would receive a total incentive in the amount of $822,735. During the eight -year tax abatement, the City would receive 30% of property tax revenues on the building /improvements and equipment, resulting in new revenues of approximately $352,601. EXHIBITS Exhibit 1 - Ordinance with Tax Abatement Agreement and Exhibits Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department City of Denton Page 2 of 3 Printed on 2/12/2015 File M ID 15 -116, Version: 1 Respectfully submitted: Aimee Bissett, Director Economic Development Department City of Denton Page 3 of 3 Printed on 2/12/2015 ORDINANCE NO. AN ORDINANCE AUTI--IORfZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH PETERBILT MOTORS COMPANY; SETTING FORTH ALL THE REQUIRED TERMS OF THE TAX ABATEMENT AGREEMENT IN ACCORDANCE WITH THE TERMS OF CHAPTER 312 OF THE TEXAS TAX CODE; SETTING FORT14 THE VARIOUS CONDITIONS PRECEDENT TO PETERBILT MOTORS COMPANY LP, RE- CEIVING THE TAX ABATEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on the 17th day of February, 2015, after a public hearing duly held in ac- cordance with §201 of Chapter 312, Texas Tax Code (the "Act"), the City Council passed Ordi- nance No. 2015- (the "Ordinance") establishing Reinvestment Zone No. XII, City of Denton, Texas as a commercial/industrial reinvestment zone for tax abatement (the "Zone"), as authorized by Title 3, Chapter 312, Subchapter B of the Act; and WHEREAS, on the 9th day of December, 2014, Peterbilt Motors Company, a division of PACCAR Inc, a Delaware Corporation ("Peterbilt Motors Company"), submitted an application for tax abatement with various attachments to the City concerning the contemplated use of cer- tain property located within the Zone; and WHEREAS, the City Council finds that the contemplated use of the premises and the contemplated improvements to the premises, as indicated by Peterbilt Motors Company, are consistent with encouraging the development of the Zone in accordance with the purposes for its creation and are in compliance with the Denton Tax Abatement Policy; and WHEREAS, the City Council deems it in the public interest to enter into a Tax Abate- ment Agreement with Peterbilt Motors Company; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DEN,rON HEREBY ORDAINS: SECTION 1. The findings contained in the preamble to this Ordinance are true and cor- rect and are adopted as a part of the whole Ordinance. SECTION 2. The City Council finds and determines the following: A. The contemplated use of the premises and the contemplated improvements of the premises, as indicated by Peterbilt Motors Company, are consistent with encouraging the development of the Zone in accordance with the purposes of its creation and are in compliance with the Denton Tax Abatement Policy. B. The City Council finds that the improvements sought by Peterbilt Motors Company within the Zone are feasible and practical and would be a benefit to the land to be in- cluded in the Zone and to the City after the expiration of the Tax Abatement Agree- ment to be entered into with Peterbilt Motors Company. Page 1 of 3 C. The City Council finds that the Tax Abatement Agreement contains all the terms which are mandatorily required to be included in any tax abatement agreement under §312.205 of the Act. D. In accordance with §312.2041 of the Act, the City Council finds that not later than the date on which the City Council considered this ordinance, and not later than the sev- enth day before the date the City enters into a 'Fax Abatement Agreement with Peterbilt Motors Company, that the City Manager, through the Director of Economic Development, who are hereby designated and authorized by the City Council to give such notice, delivered to the presiding officer of the Denton Independent School Dis- trict and Denton County a written notice that the City intends to enter into this Tax Abatement Agreement with Peterbilt Motors Company, and that this notice included a copy of the proposed Tax Abatement Agreement in substantially the form of the Tax Abatement Agreement attached to this ordinance. E. Before the passage of this Ordinance, the City Council held a public hearing in ac- cordance with §312.201 of the Act and created Reinvestment Zone No. XII. F. The City Council finds that the project within Reinvestment Zone No. XII is a rede- velopment and expansion of an existing business as defined in the Tax Abatement Policy and requires additional incentives to promote economic development that gen- erally satisfies the requirements of the policy and the City Council hereby authorizes a tax abatement of a maximum of 70% on the increased valuation of the Taxable Real Property improvements and tangible personal property as more particularly described in the 'Fax Abatement Agreement attached hereto and made a part hereof by reference as Exhibit "A" (the "Tax Abatement Agreement"). SECTION 3. The Mayor, or in his absence, the Mayor Pro Tern, is hereby authorized to execute the Tax Abatement Agreement with Peterbilt Motors Company in substantially the same form as the Tax Abatement Agreement attached as Exhibit "A". SECTION 4. The City Council hereby instructs and authorizes the City Manager to in- spect, audit, and evaluate the progress of Peterbilt Motors Company to determine if it has met all of the conditions of the attached 'fax Abatement Agreement prior to the tax abatement going into effect. SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton hereby declares that it would have enacted such remaining portions despite any such validity. SECTION 6. This Ordinance shall become effective immediately upon its passage and approval. Page 2 of 3 PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: /4y CHRIS WATTS, MAYOR Page 3 of 3 TAX ABATEMENT AGREEMENT This Tax Abatement Agreement (the "Agreement") is entered into by and between the City of Denton, Texas (the "City"), duly acting herein by and through its Mayor, and Peterbilt Motors Company, a division of PACCAR Inc, a Delaware Corporation duly authorized to do business in the State of 'Texas (the "Owner") Peterbilt Motors Company, duly acting herein by and through its authorized officer. WHEREAS, the City has adopted a resolution which provides that it elects to be eligible to participate in tax abatement and has adopted guidelines and criteria governing tax abatement agreements known as the Denton Tax Abatement Policy; WHEREAS, on the 6t" day of May, 2014, the City Council of Denton, Texas (the "City Council") adopted the Denton Tax Abatement and Incentive Policy (the "Policy"), a copy of which is on file in the City of Denton Economic Development Office and which is incorporated herein by reference; WHEREAS, the Policy constitutes appropriate "guidelines and criteria" governing tax abatement and incentive agreements to be entered into by the City as contemplated by Section 312.002 of the Texas Tax Code, as amended (the "Code"); and made pursuant to the economic development program provisions of Chapter 380 of the Texas Local Government Code (the "Act") to promote local economic development and to stimulate business and commercial activi- ty in the City of Denton; WHEREAS, on the 17th day of February 2015, the City Council passed Ordinance No. 201- (the "Ordinance") establishing Reinvestment Zone No. XII, City of Denton, Texas, as a commercial/industrial reinvestment zone for tax abatement (the "Zone"), as authorized by Title 3, Chapter 312, Subehapter B of the Code (the "Act"); WHEREAS, Owner will be the owner, as of the Effective Date (as hereinafter defined), which ownership is a condition precedent, of certain real property, more particularly described in Exhibit "A" attached hereto and incorporated herein by reference and made a part of this Agree- ment for all purposes (the "Premises") located entirely within the Zone as of the Effective Date; WHEREAS, on the 9th day of December 2014, Owner submitted an application for tax abatement with various attachments to the City concerning the contemplated use of the Premises (the "Application for Tax Abatement"), which is attached hereto and incorporated herein by ref- erence as Exhibit "B"; WHEREAS, the City Council finds that the contemplated use of the Premises, the Con- templated Improvements (as hereinafter defined) to the Premises as set forth in this Agreement, and the other terms hereof are consistent with encouraging development of the Zone in accord- ance with the purposes for its creation and are in compliance with the Ordinance and Policy and similar guidelines and criteria adopted by the City and all applicable law; and WHEREAS, notice has been published in accordance with Chapter 312 of the 'rax. Code and written notice that the City intends to enter into this Agreement, along with a copy of this Agreement, has been furnished by the City, in the manner and by the time prescribed by the Code, to the presiding officers of the governing bodies of each of the taxing units in which the Premises is located; NOW, THEREFORE, the City and Owner for and in consideration of the premises and the promises contained herein do hereby contract, covenant, and agree as follows: I. TERMS AND CONDITIONS OF ABATEMENT A. In consideration of and subject to the Owner meeting all the terms and conditions of abatement set forth herein, the City hereby grants the following tax abatement ("Abatement"): Page 2 1. An abatement equal to 70% of City ad valorem taxes attributable to new capital in- vestments resulting in an increase of assessed value (excluding land value), deter- mined by the Denton Central Appraisal District, of real property improvements to and tangible personal property (excluding inventory, vehicles and supplies) located on the Premises, excluding Grantee's assessed valuation of real and personal property cur- rently located at 3200 Airport Road, but only if such increase is at least $10,000,000 over the assessed value, determined by the Denton Central Appraisal District, of the Premises and tangible personal property (excluding inventory and supplies) located on the Premises, excluding Grantee's assessed valuation of real and personal property currently located at 3200 Airport Road as of January 1, 2015, for a period of eight years commencing on January I of the year following the Owner's issuance of a cer- tificate of occupancy (the "CO") for the Premises. If such increase in assessed value, determined by the Denton Central Appraisal District, is less than $10,000,000 there will be no Abatement. B. A condition of the Abatement is that, by December 31, 2017 (subject to force majeure delays not to exceed 180 days), a capital investment which results in an increase in the assessed values, determined by the Denton Central Appraisal District, contemplated by Section I.A.1 be made to the Premises. For the purposes of this paragraph, the term "force majeure" shall mean any circumstance or any condition beyond the control of Owner, as set forth in Sec- tion XX "Force Majeure" which makes it impossible to meet the above - mentioned thresholds. C. The term "capital investment" is defined as the construction, renovation and equipping of the Improvements on the Premises (the "Contemplated Improvements" or "Im- provements") to include (1) costs related to the development and improvement of the real estate, including, without limitation, construction costs and design and engineering costs; (2) tangible Page 3 . ....... . ... personal property located on or at the Contemplated Improvements by Owner, excluding inven- tory and supplies. The kind and location of the Contemplated Improvements is more particularly described in the Application for Tax Abatement. D. A condition of the Abatement is that the Contemplated Improvements be con- structed and the Premises be used substantially in accordance with the description of the project set forth in the Application for Tax Abatement. E. A condition of the Abatement is that throughout the Term of the Abatement, the Contemplated Improvements shall be operated and maintained for the purposes set forth herein so that the uses of the Premises shall be consistent with the general purpose of encouraging de- velopment or redevelopment of the Zone, except as otherwise authorized or modified by this Agreement. F. The City shall have the right to terminate the Abatement if the Owner does not occupy the Contemplated Improvements continuously for the term of the Abatement for the pur- poses set forth in the Tax Abatement Application. In the event of" such termination the Owner shall refund to the City all previous tax abatements and all tax abatements for future years shall be terminated. ment. G. Owner agrees to comply with all the terms and conditions set forth in this Agree- II. FAILURE TO MEETCONDFHONS A. In the event that (i) the conditions in paragraphs l(B) through I(G) are not met; or (ii) Owner allows its ad valorem real property taxes with respect to the Premises or Improve- ments, or its ad valorem taxes with respect to any tangible personal property, if any, owned by the Owner which is located in the Improvements, owed the City to become delinquent and fails to timely and properly follow the legal procedures for protest and/or contest of any such ad val- Page 4 orem real property or tangible personal property taxes; or (iii) any other conditions of this Agreement are not met, then a "Condition Failure" shall be deemed to have occurred (it being understood that a Condition Failure relating to any condition set forth in paragraphs l(B) through I(G) shall not be deemed to occur merely because at a particular time it cannot be determined whether such condition will be met, but shall occur only if at a particular time it can be defini- tively determined that such condition will not be met). In the event that a Condition Failure oc- curs, the City shall give Owner written notice of such Condition Failure and if the Condition Failure has not been cured or satisfied within ninety (90) days of said written notice, the Abate- ment shall be terminated with respect to the year in which notice of the Condition Failure is giv- en and all future years; provided, however, that if such Condition Failure is not reasonably sus- ceptible of cure or satisfaction within such ninety (90) day period and Owner has commenced and is pursuing the cure or satisfaction of same, then after first advising City Council of efforts to cure or satisfy same, Owner may utilize an additional ninety (90) days. Time in addition to the foregoing 180 days may be authorized by the City Council. It is understood that the Abatement with respect to any year prior to the year in which notice of the Condition Failure is given shall not be forfeited or recaptured except as indicated Linder Section 11.13 hereof. Notwithstanding any provision in this Agreement to the contrary, Owner shall refund to the City all tax abate- merits previously received with interest for the year in which the notice of Condition Failure is given. B. If, however, the Owner fails to construct any structures or other improvements, or fails to install any equipment or other tangible personal property within the Premises by Decem- ber 31, 2017 or if the assessed value, determined by the Denton Central Appraisal District, of the Improvements falls below the minimum $10,000,000 threshold during the term of the Abate- ment, then this Agreement may be terminated by the City. In such event, Owner shall refund to Page 5 the City all tax abatements previously granted and received under this Agreement with interest on the amount to be refunded at six percent (6%) per annum. C. In the event of a Condition Failure by Owner which is not cured or satisfied as set forth herein, in addition to a partial or total recapture of the tax abatement, the City may cancel or modify this Agreement. Ill. RECORDS AND EVALUATION OF PROJECT A. The Owner shall provide access and authorize inspection of the Premises by City employees and allow sufficient inspection of financial information to insure that the Improve- ments are made and the thresholds are met according to the specifications and conditions of this Agreement. Such inspections shall be done in a way that will not interfere with Owner's busi- ness operations. City shall annually (or such other times deemed appropriate by the City) evalu- ate the Project to ensure compliance with this Agreement. Upon request, the Owner shall pro- vide information to the City on a form provided by the City for the evaluation. The information shall include inventory listing the kind, number, and location of and the total assessed value, de- termined by the Denton Central Appraisal District, of all Improvements to the Premises, includ- ing, without limitation, the assessed value, determined by the Denton Central Appraisal District, of all structures and all tangible personal property installed or located in the Premises. B. The City Manager shall make a decision and rule on the eligibility of the Project for tax abatement based on the information furnished each year by the Owner on or before AU- gust I of the taxable year and shall so notify Owner and the City Council. C. During normal office hours throughout the Term of this Agreement, providing reasonable notice is given to Owner, the City shall have access to the Premises by City employ- ees for the purpose of inspecting the Premises and the Improvements to ensure that the lin- provements are being made in accordance with the specifications and conditions of this Agree- Page 6 ment and to verify that the conditions of this Agreement are being complied with, provided that such inspection shall not interfere with Owner's normal business operations. D. Upon request, the Owner shall annually make a certification in writing to the City council, on or before June I" of each year this Agreement is in effect that certifies that the Own- er is in compliance with each applicable term of this Agreement. IV. GENERAL PROVISIONS A. The City has determined that it has adopted guidelines and criteria governing tax abatement agreements for the City to allow it to enter into this Agreement containing the terms set forth herein. B. The City has determined that procedures followed by the City conform to the re- qLiirements of the Code and the Policy, and have been and will be undertaken in coordination with Owner's corporate, public employee, and business relations requirements. C. The Premises are not in an improvement project financed by tax increment bonds. D. Neither the Premises nor any of the Improvements covered by this Agreement are owned or leased by any member of the City Council, any member of the City Planning and Zon- ing Commission of the City, or any member of the governing body of any taxing units joining in or adopting this Agreement. E. In the event of any conflict between the City zoning ordinances, or other City or- dinances or regulations, and this Agreement, such ordinances or regulations shall control. V. EFFECTOF SALE, ASSIGNMENT, OR LEASE OF PROPERTY A. The Abatement with respect to the Premises, including any tangible personal property located on the Premises owned by Owner, shall vest in Owner and shall be assignable, with City approval, which shall not be unreasonably withheld, to any individual, partnership, Page 7 joint venture, corporation, trust or other entity (irrespective of whether or not such assignee is related to or affiliated with Owner) which acquires title to the Premises. Any assignee of Owner or any assignee of a direct or indirect assignee of Owner shall be treated as "Owner" under this Agreement. No assignment shall require the consent of City if the assignment is to a wholly- owned subsidiary of the Owner or if, following such assignment, the Owner continues to occupy and operate the Contemplated Improvements for the full term of this Agreement. Nor shall the consent of the City be necessary if the assignee agrees to fully comply with the terms and condi- tions of this Agreement. V1. NOTICE All notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designated in writing, by certified mail postage pre- pare, by hand delivery or via facsimile: OWNER: PACCAR In. 777 106th Avenue N.E. Bellevue, WA 98004 P.O. Box 1518 Bellevue, WA 98009 Attn: Tom Loughran Director of Tax 425-468-7459 CITY: George A. Campbell City Manager City of Denton 215 E. McKinney Denton, Texas 76201 Fax No. 940-349-8596 V11. CITY COUNCII., AUTHORIZATION 'This Agreement was authorized by the City Council by passage of an enabling ordinance at its meeting on the _ day of _, 2015, authorizing the Mayor to execute this Agree- ment on behalf of the City, a copy of which is attached hereto and incorporated herein by refer- ence as Exhibit "C". Page 8 VIII. CHIEF EXECUTIVE OFFICER AUTHORIZATION This Agreement was entered into by Owner, pursuant to authority granted by the Chief Executive Officer of its ultimate parent, Peterbilt Motors Company, a division of PACCAR Inc., a Delaware Corporation. Evidence, which must be satisfactory to the City, that the person sign- ing this Agreement is authorized to bind Owner to all of the terms and conditions of the Agree- ment is attached hereto and incorporated herein as Exhibit "D" as if written word for word here- in. Ix. SEVERABULTY In the event any section, subsection, paragraph, sentence, phrase or word is held invalid, illegal or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and shall be read as if the parties intended at all times to delete said invalid section, subsection, para- graph, sentence, phrase, or word. In the event that (i) the term of the Abatement with respect to any property is longer than allowed by law, or (ii) the Abatement applies to a broader classifica- tion of property than is allowed by law, then the Abatement shall be valid with respect to the classification of property abated hereunder, and the portion of the term, that is allowed by law. X. ESTOPPEL CERTIFICATE Any party hereto may request an estoppel certificate from the other party hereto so long as the certificate is requested in connection with a bona fide business purpose. The certificate, which if` requested will be addressed to the Owner, shall include, but not necessarily be limited to, statements that this Agreement is in full force and effect without default (or if default exists the nature of default and curative action, which should be undertaken to cure same), the remain- Page 9 ing term of this Agreement, the levels and remaining term of the Abatement in effect, and such other matters reasonably requested by the party(ies) to receive the certificates. X1. OWNER STANDING Owner, as a party to this Agreement, shall be deemed a proper and necessary party in any litigation questioning or challenging the validity of this Agreement or any of the underlying or- dinances, resolutions, or City Council actions authorizing same and Owner shall be entitled to intervene in said litigation. XII. APPLICABLE LAW This Agreement shall be construed under the laws of the State of Texas and is fully per- formable in Denton County, Texas. Venue for any action under this Agreement shall be in Den- ton County, Texas. XIII. MUTUAL ASSISTANCE City and Owner agree to do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying Out such terms and provisions. Owner and City agree at any time, and from time to time, to execute any and all documents reasonably requested by the other party to carry out the intent of this Agree- ment. XIV. ENTIRE AGREEMENT This instrument with the attached exhibits contains the entire agreement between the par- ties with respect to the transaction contemplated in this Agreement. XV. BINDING Page 10 This Agreement shall be binding on the parties and the respective successors, assigns, heirs, and legal representatives. XV1. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed an orig- inal, but all of" which together shall constitute one and the same instrument. XVII. SECTION AND OTHER HEADINGS Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Xvill. NO JOINT vl,','NTURE Nothing contained in this Agreement is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby disavowed. XIX. AMENDMENT This Agreement may be modified by the parties hereto to include other provisions which could have originally been included in this Agreement or to delete provisions that were not orig- inally necessary to this Agreement pursuant to the procedures set forth in 'Title 3, Chapter 312 of the Code. XX FORCE MAJEURE If, because of flood, fire, explosions, civil disturbances, strikes, war, acts of God, or other causes beyond the control of either Party, either Party is not able to perform any or all of its obli- gations under this Agreement, then the respective Party's obligations hereunder shall be sus- Page I I pended during such period but for no longer than such period of time when the party is unable to perform. This Agreement is executed to be effective 30 days after the executed date of the day of -, 2015, (the "Effective Date") by duly authorized officials of the City and Owner. CITY OF DENTON, TEXAS BY: ATTEST: JENNIFER WALTERS, CITY SECRETARY WA APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ATTEST: UN CHRIS WATTS, MAYOR PETERBIL'r MOTORS COMPANY BY: TOM LOUGI IRAN, DIRECTOR OF TAX Page 12 STATE OF TEXAS COUNTY OF DENTON Before me, the undersigned authority, a Notary Public in and for said State of Texas, on this day personally appeared Chris Watts, Mayor for the City of Denton, known to me to be the person who signed and executed the foregoing instrument, and acknowledged to the that this in- strument was executed for the purposes and consideration therein expressed. Given Linder my hand and sea] of office this the day of _, 2015. Notary Public in and for the State of Texas My Commission Expires: Page 13 STATE OF TEXAS § COUNTY OF DALLAS § Before me, the undersigned, Tom Loughran, on behalf of Peterbilt Motors Company, known to me to be Director of 'Fax for Peterbilt Motors Company, a division of PACCAR, and to be the person who signed and executed the foregoing instrument, and acknowledged to me that this instrument was executed for the purposes and consideration therein expressed. Given under my hand and seal of office this the day of_, 2015. Notary Public in and for the State of My Commission Expires: . . . . ...... ....... EXHIBIT A Property Description of Reinvestment Zone X11 SITUATED in the City of Denton, Denton County, Texas, and being a tract of land in the JOI IN DAVIS SURVEY, Abstract No. 326, the JAMES PERRY SURVEY, Abstract No. 1040, and the EUGENE PUCHALSKI SURVEY. Abstract No. 996 being all of LOT 1, BLOCK A, PETERBILT ADDITION, as shown on plat thereof recorded in Cabinet H, Slide 195, of the Denton County Plat Records, and all of that certain tract conveyed to PACCAR Inc, by deed rec- orded in Volume 4366, Page 244, of the Denton County Deed Records, and all being more fully described as follows: BEGINNING at a '/2" square iron rod found in place for the southwest corner of said Lot I and the southeast comer of Lot 1, Block 1, Westpark, as shown on plat thereof recorded in Cabinet C, Slide 127, of said Plat Records, said point being in the north line of Airport Road (State F.M. Highway 1515-90 foot wide right-of-way); THENCE North 0 degrees, 09 minutes West, at 2075.18 feet passing a chain link fencepost for the northwest corner of said Lot 1, Peterbilt Addition, and continuing with the west line of said tract conveyed to PACCAR Inc, and an east line of a remainder of that certain tract conveyed to Evelyn Rayzor Nienbuis, et a], by deed recorded in Volume 3088, Page 712, of said Deed Rec- ords, in all 2582.82 feet to a 5/8" iron rod set for the northwest corner of said PACCAR Inc tract; THENCE North 89 degrees, 49 minutes East with the north line of said PACCAR Inc tract and a south line of said Nienhuis, et at, remainder, 1676.79 feet to a 5/8" iron rod set for the beginning of a curve whose center bears South 0 degrees, 11 minutes East, 40.0 feet; THENCE southeasterly with said curve and a northeasterly line of said PACCAR Inc tract and a southwesterly line of said remainder, a distance of 62.83 feet to a 5/8" iron rod set for the end of said curve; THENCE South 0 degrees, 11 minutes East with the east line of said PACCAR Inc tract and a west line of said remainder, passing the southeast corner of said PACCAR Inc tract and the northeast corner of said Lot 1, Peterbilt Addition and the Northwest corner of Precision Drive (70 foot wide right-of-way at this point), continuing with the east line of said Lot 1, Peterbilt Addition, and the west line of Precision Drive, in all 1419.79 feet to a 1/2" square iron rod found in place for the beginning of a curve whose center bears North 89 degrees, 49 minutes East, 397.82 feet; THENCE southerly with said curve and with said east line of I...ot 1, Peterbilt Addition, and west line of Precision Drive, a distance of 289.3 feet to the end of said curve; THENCE South 41 degree, 51 minutes East, continuing with said east line of Lot 1, Peterbilt Addition and west tine of Precision Drive, 41.6 feet to the most easterly point of said Lot 1, Peterbilt Addition at the point of intersection of said west line of Precision Drive with a north- westerly line of said Airport Road, from which point a 1/2" it-on rod found in place bears North 89 degrees West, 0.16 foot, and said point being on a curve whose center bears South 45 degrees, 01 minute, 36 seconds East, 617.96 feet: Page 15 'THENCE southwesterly with said curve and continuing with an easterly line of said Lot 1, Peterbilt Addition and westerly line of said Airport Road, a distance of 298.05 feet to the end of said curve; THENCE South 17 degrees, 20 minutes, 20 seconds West, continuing with an easterly line of said Lot 1, Peterbilt Addition and westerly line of Airport Road, 207.6 feet to the beginning of a curve whose center bears North 72 degrees, 39 minutes, 40 seconds West, 527.96 feet; THENCE Southerly with said curve and continuing with an easterly line of" said Lot 1, Peterbilt Addition, and westerly line of Airport Road, a distance of 663.92 feet to the end of said curve, from which point a 1/2"square iron rod found in place bears South 66 degrees East, 0.6 foot; THENCE South 89 degrees, 23 minutes, 20 seconds West with the south line of said Lot 1, Peterbilt Addition, and the North Line of said Airport Road, 1131.28 feet to the PLACE OF BE- GINNING, and containing 100.0 acres. Page 16 EXIIIBITB: Application Page 17 a a MEM2341 City offlenton Department of Exonomic Development Denton, Texas 76201 (940) 349-7776 (940) 349-8596 FAX www.cityof-denton.com Aiiiiec.fli,)sett(�i�city -ol,dentoii.coilI K74CENTiVE APPLICATION CITY OF DENTON, TEXAS i Property Owner PACCAR Inc. __�,—,—P'Name Peterbilt Motors __,—,@_— Airport _.Denton, TX 7_07 (lie 11.0, Box 1518 Bellevue. WA 98009-1518 Teleplione 9-1i()-5()6-7l00 Fax 9'0-566-7263 Plant Man'allel"S Mailiii- Address .3�200 Airport Rd. Denton, Te:u 76207 Telephone 940-566-73340 Fax No. 940-566-7263 Email Address _ Provide a —__chronology _ plant openings, closing and _—_—relocations over —-tile past _ years. _ 11 Denton Plant opelled in 1980 with 83 employees experiencing a steady orowth to over 2000 employees mdzy, The plant has expanded twice in the pas, 34 years and continues to invcst in technolog |mimpnmod pndouohlcioncy. In i9V3.Pa*bih relocated its Division office from CoUl'zminm Denton Texuu. |n2009 Pcul�bi|/ consolidated ail of its hCavyVmy/RIuk production inDenton, Texas. — Provide --_---_�—'_-----___n--,'___ 4, Will the occupants uf the pro cube owner m|essee'? |f lessee, are mcLIpmncy commitments al�c idy existiva? OIXIM 5. |s the pro jmcta relocation u[edmjog facility mu new facility m expand operations? K relocation, give cvrrm/|ocwbon� This is an expansion ofeurrent operators to the existing facility. 6� |/anoxisdn- Denton businoso, will project result in abandonment nfoxiuzing facility? |f so, tile value oftile ' migin'o8.d[i|y will h* subtracted from the value n[dbcnew facility tn arrive at total pnjuctvu|uo. 7. Property, Description, e a- c2 jcscr I : Pti011 detailing, property's metes and boullds, Attach map ofplojCCt inClUdir)(I all roadways, land use and zonfin, within 500 feet ofsite, CLIt-l-ClIt Value. Attach copy of latest property tax statement firom the Denton County Central Appraisal District Include both real (land and improvements) and personal property). 9. lrrcrerase,d Valaaulfistimated Total Cost of Pro ect. 23. 1 Million Site Development Structures Personal Property SUM Other Improverve. ements S1.8m W Indicate Percent of tax abatement and number of years requested. Percent Requested List any other financial incentives this project will request/receive Eseimated Fj eport Exemption 1-111, w.—.._ ,tra —Develop—ment, _Ride`L_,, S u'c' t —ure'—---' — — ----- Assistance Chapter 380 Incentive -Ti-N70 —abrie—f d—escri"p'—don of the activities to be performed at this .location, . includino a description ot'prodUCtS to be produced and/or services to be provided, —m n it , —uluf t, LIl, with an T) employees at tile Division offices, Pets rbilt has increased its prodLlCtj011 level by 3214 ,,', and employee level by 20"o in 2014, This has also had similar results on the supply base servicing the Denton plant \vIlicil are located within Denton city limit:. Peterbilt is the largest private employer in 1. I )eIltOn With all anoLMI Cost of benefits /payroll of approximately $200 million. 11 Describe any offsite iofraStFUCtUrC rCqLH. rements: Water Page _3 ) of 8 * Streets 0 Other 13. Prc.Ject Operation Phase. Provide employment information for the number of years incentive is requested. P. Types of Jobs created. List theinb titles and number o/ positions in each cate�oryd`�xiOtmomp�Jcd m�e�oi|by.ym,�ouvcmgn wage �reach ca��ory Petterbilt currently operates two full shifts and a partial 3rd shil't ill a number ofareas. While this pro1ject hocnvdi,ectimpuczno/hchi,in"o[ncIA'ump|oyres,i,pmvidcscohuncemmnts,pmvid|ogvmn*Ue, Page 4 of 8 At Project Existing Start Date At Term of Employment Information Operation (mo/yr) Incentive Toi.�, —number �'I—'pern—ianent, full-time Jobs B. Employces transferred from outside Denton C Net pernranent full-time Jobs, (A. minus B.) annual payroll for all pet Total -ruanent, full-time P. Types of Jobs created. List theinb titles and number o/ positions in each cate�oryd`�xiOtmomp�Jcd m�e�oi|by.ym,�ouvcmgn wage �reach ca��ory Petterbilt currently operates two full shifts and a partial 3rd shil't ill a number ofareas. While this pro1ject hocnvdi,ectimpuczno/hchi,in"o[ncIA'ump|oyres,i,pmvidcscohuncemmnts,pmvid|ogvmn*Ue, Page 4 of 8 Estimate annual utility USaOC for project; Will be consistent with CUITCut levels 4 U R, wastewater 'A Water I' Gas d gpd 14. Describe all y other direct benefits to the City ol"Denton as a result of this project (e.g., sales tax revenue or 111-0ject elements identified in Tax Abatement Policy, Section 111), There are a runuber (if businesses in Denton which directly SUPPOI-t Peterbilt. As Peterbilt Continues to expand and grow, the bUSh)CSSCS related to tlud SUppOftiu(1 will also grow. 'I'llis project further (Teration s pro viding , the in fir astructuye enhances the for additional truck production, 15. Is property zoned appropriately? Yes X No CUI-rent Zonin,, Zoning required for' proposed project. Anticipated variances, 16. Is propeq)° platted? Yes X No Will 1'eplatting be necessary _T Yes e project. No X 17. -TI-11—cusS any _(71)1111 —Omflent,, I 1 created 7C —List —any permits for Which applicant Must apply. Applicant will be required to provide City wit], copies of all applications tor environmental permits upon completion of application(s), _T3 ofccrrnn to all enwironmcntal refs 1trlations for � past J years. 18. Provide specific detail of any businesses/residents that will be displaced and assistance that Nvill be available. firorn the requesting company. I91 Provide descrilldon IY �1V)111111EIIITI�l u d area as determined by the Historic preservation officer. If any, --live detail of how the historically significant area will be preserved. Pa,grc 5 of` 8 ZU� /m6ficationfor Incentive RequeSt: Substantiate and more fully describe thejm6fication for [his request. Include the mnwmuofthe incentive requested and show bow it will contribute mthe financial ,iobih,y uftho project. Submit attachments ifnrcnssmy. Petuiib has 8mwninDun�nhnn 83�npk�ec io|980mmurcunxn |mz}�y�ude'dunundundnew product ud'Chn2l has required continuous growth with Denton being the largest nfPoter U/modudioo FacUidxs` this growth is predicted to continue, Pcterbdtbos invested $75M io the past six years m improve capacity while consolidating at] bcmvy duty truck mmnut'a#vriugoperations in the Denton factory since 2009. Z|, List additional ubuumunt factors mbc considered kvthis pro nuao outlined oil paoc 3 and 4nfthe Incentive policy. 21 Financial |nfonnodm,: &und` o copy ofthe latest audited financial utatementor, in the case ofu new project, Li business plan. Attached is PACCAR Annual Kcpnu. The company does not report financial iok`nnuion at Division levek 2.33 Does the project have an clioible environmentally sustainable or renewable energy component (ifso, please identify type and provide u brief descrimion)? Pumdi|tmUiz" energy efficient lighting, supports a zero waste to landfill program and monitors ourcarbon footprint m pa: ofnvrCol-J)orat*auStainabi|ig'program. YYo utilize all :nu ... ymunnoemumm monitor and control Our clecti1cal usa"e. Peterbill is ISO 14001 certified environmental. (See attachment for additional envil'onniental information.) 24� Applicants omJ in- LCCDrurtihcudon must complete the Green BuikUn.app|icubuo kv Tax Abatement (Exhibit B ofthe policy). occupies buildino vacant Cor at least 2 years Donation of materials to public schools Project creates high-skilled, high-payin- Jobs Improvements to Downtown _3�_'_Significant rclationship With Lill iVCrSitieS X Project fornis bLISilleSS park (I"Inhances) )5% ofnewJobs filled by Denton residents International oi- national headquarters local contractors to be utilized Medical manufactUrinO or research facility 251�,�') ofjobs are knowlechye-based X Environmentally Sustainable practices used Donation of signi ficant public art Renewable Energy t-yetici',ited/stot,ed/LltiliZC(I X COITUTILIllity Support and involvement: Attach description ofcommunity involvement 21 Financial |nfonnodm,: &und` o copy ofthe latest audited financial utatementor, in the case ofu new project, Li business plan. Attached is PACCAR Annual Kcpnu. The company does not report financial iok`nnuion at Division levek 2.33 Does the project have an clioible environmentally sustainable or renewable energy component (ifso, please identify type and provide u brief descrimion)? Pumdi|tmUiz" energy efficient lighting, supports a zero waste to landfill program and monitors ourcarbon footprint m pa: ofnvrCol-J)orat*auStainabi|ig'program. YYo utilize all :nu ... ymunnoemumm monitor and control Our clecti1cal usa"e. Peterbill is ISO 14001 certified environmental. (See attachment for additional envil'onniental information.) 24� Applicants omJ in- LCCDrurtihcudon must complete the Green BuikUn.app|icubuo kv Tax Abatement (Exhibit B ofthe policy). Community Involvement • Denton County United Way — Board of Directors (Largest Contributor) • North Texas Fair Association — Board of Directors • DISD FFA Alumni Association • Boy Scouts of America Longhorn Council • Denton Chamber of Commerce — Board of Directors • Denton Chamber & City of Denton Joint Economic Development Board • Chamber of Commerce Economic Development Investor • Denton Community Development Association • Denton Salvation Army • Main Street • Toys for Tots • Relay for Life • Heart Association Walk • High School Interview Skills Training • Denton Benefit League • DISD School Supply Drive • Make-A-Wish • NCTC Guidance Board COMPLETE THIS SECTION IF REQUES'rING ADDITIONAL INCEN'rivE BASED ON LEED CERTIFICATION CONSTRUCTION I PropertyT)Tvner —Company or Project Nttn'ie Mai,lin- Addres s Telephone Fax No, C 'te NtaiGn Contact Name Address Telephone No Email Address 2. Project location address; 3. llrc�vide dOCU111Cr1Mti0r1 that the project has been registered with the US, Green Building Council. ,I, Pro—vide a descr rption of the project (please include the building, size, MMIlm' Of OCCUpants and estimated budoct). . .. .......... Attach a preliminary Leadership in Energy and Environmental Lesion (LEER) Scorecard HILIMratim, how protect will achieve the LEED certification. Level —or(" crt i I i -c' a t —io i i,:— Number of Points: This Incentive Application is submitted with the acknowledgement that additional information may be required. Paae 7 of 8 Authorized Signature z/ 1D /LLj Page 8 of 8 Ptter i|\—Donmnacusmmmoout'aoumrofC|ass8huuvydmytnuka maintains at) 8 � mi mvci�uminmm�u}mn�gunumund 6nvimnmoob/K8unu��m�nt ym m mp , u|tima\c|y,corcduccthxenviroumuotu|impuntsofimoperxLionu^actividen,pmduCts,und services, Within fbe h'anmelvnzknfoor Environmental Management System we Conmnmi1 to: �|d�odfynm�o6v|s.p/nc,yuos,pmdnc/nondwuo|oa/hatcauScormqycausupoUudnn,and wi|| imp|omrn/mcaouresto avoid, rcdu^Corcootmlpo�iu/iun.vhcrct�ohniov||yund ocnn^miouUyviub|o; �Cpmp|y with npp\ico6|convimnmwn�|laws, r��)udooc,cod000�pradimr and othe, uovimomuntu\ requirements mwhich tile cmnpuoyxuhscribuo, 7b achieve and maintain cump|iuncc'wcwiUJcvc|opondmainkaiomuoogcmcniaysmmsfbridontiFyiogrc|uvan\ vrguircmena and fbrmoniiorin,,pol7onnuucoufrelme6 activities; and �-ConbnunUycohan'e and improve tile bnlummuntal Mbno,oxmontSysumm ensure that itisappmprin»r and effective fbrholyin"usw achieve Our environmental -goa|y. P«terb�|t—Duokomwpd\cnmmplotmtbmfuUovpingyrogrummmtnuobicve|ta Environmental goals: l. K4uinboio and expand uo12ohll., pro-rams for mater\al yu6odtubonuaod paint application imp/o,om*ntsfbr000/iuuouureduodonoF^irmniuoion`(V0(', ^ HAPn and £xcmpt3o|vcuto). = 2.Cundnuo\o enhance andoxpaod tile materials lnpiu,ics program for the cou6nvons/edouinnof wood and paper products used inpuol�ao\ngmaterials. 3� Nuoo�uandconoo)puiotUnoolooningpmccyxcu[orconbnuoosroducdunofihc oxuo[puintcquipmcntoicuuioz(�'oo|vcn/- 1 Pi � 4. implement material substitutions and process source FCduuiuno for uonbnunux roJuuiono[dmoencctiono[UuzandousWaste. 5. Minimin:momtc, rruuCmuorialo, \ncrcm�ocyo\iu�und u6iizewnute-tn-u`e/oy to ms\uin Zero Land Disposal ofall Plant Trash, h�Pmmo(ocno�y and wu�rconservation mcnuurcotomducc1hrumcofdc��uit� natural �4o,undw�urr0000nma� | A PACCAR COMPANY Ttiviropmental Proaram Zero Waste To Landfill 1 A9 ProducfW' Sources of the 1,326 tons Solid Waste Generated YTD • >64% Packaging related 441 Total Pounds Solid Waste ,(,),cneratcd/'Frucl( • Identified by Categories • Cornpared to PI-CViOLIS Ye"ars Disposal Methods and Utilizatim Percent YTD • >79% Recycled - Reuse o's L-T 01 4"" 'U j �',',Oblectives A PAW= COMPANY ENVIRONMENTAL GOAL 006 IMPLEMENT: ENERGY EFFICIENCY I MPROWENTS TO REEDUCE ELECTRICITY AND NATURAL GAS USAGE PER TRUCl,' , PRODUCED :tiro Ytllt VELfCTRICAL USAGE u. PROPERTY OWNER 17.12 sr PACCAR INC ATTN: TAX DEPT PO BOX 1518 BELLEVUE WA 98009-1518 81 11111111111111111111, 'fill III 0111, 11 '1111. -1-11 1111 11111 ItIll PROPERTY VALUES IMPROVEMENT VALUE .NON HOMESITE IMPROVEMENT LAND MARKET VALUE 2014 OhiGINAL TAX STATEMENT PROPERTTYY,ACCOUNT =NUMBER 495222DEN PROPERTY LEGAL DESCRIPTION RYAN COMPANIES ADDN BLK A LOT 2(MID PT) EXEMPTIONS: Ag (ASSESSMENT RATIO: 100% 1 MINERAL VALUE PERSONAL PROPERTY 4,379,871 AG VALUE TOTAL MARKET VALUE 2,011 11 379,871 , JURISDICTION MICHELLE FRENCH TAXABLE VALUE' DENTON COUNTY BASE LEVY TAX ASSESSOR COLLECTOR PO BOX 90223 4,377,860 DENTON, TEXAS 76202 - 0.689750 940 - 349-3500 PROPERTY OWNER 17.12 sr PACCAR INC ATTN: TAX DEPT PO BOX 1518 BELLEVUE WA 98009-1518 81 11111111111111111111, 'fill III 0111, 11 '1111. -1-11 1111 11111 ItIll PROPERTY VALUES IMPROVEMENT VALUE .NON HOMESITE IMPROVEMENT LAND MARKET VALUE 2014 OhiGINAL TAX STATEMENT PROPERTTYY,ACCOUNT =NUMBER 495222DEN PROPERTY LEGAL DESCRIPTION RYAN COMPANIES ADDN BLK A LOT 2(MID PT) EXEMPTIONS: Ag (ASSESSMENT RATIO: 100% 1 MINERAL VALUE PERSONAL PROPERTY 4,379,871 AG VALUE TOTAL MARKET VALUE 2,011 11 379,871 , JURISDICTION EXEMPTIONS TAXABLE VALUE' TAX RATE BASE LEVY CITY OF DENTON CITY or To DENTON ISD 4,377,860 2,011 - 0.689750 13.87 L T DENTON COUNTY 4,377,860 4,377,860 2,011 2,011 1.540000 0,272200 30.97 5.47 4,W)ITIONLI r11-Y CAI CC TAV nr.11 I. r, -- - - --- I - - . I — . I I — u1 41 4-3J, TOTAL AMOUNT DUE IF PAID ON OR BEFORE JANUARY 31,,2015 Taxes are due upon receipt of statement. Payment Options on back. — Return bottom portion with your payment in the enclosed envelope. Payments tray take 7-70 clays to post. PROPERTY OWNER AND MAILING ADDRESS PROPERTY ACCOUNT NUMBER PACCARINC AT'RI: TAX DEPT 495222DEN PO BOX 1518 BELLEVUE, WA 98009-1518 Over 65/Disabled Person/Disabled Veteran Quarter Pay Request 'Please SfQrr and send in with first 14 payment before 113112015, 1 am currently receiving an Over 65/Disabled Person/Disabled Veterans exemption and request the % payment option on my 2014 property taxes. X 1111CHP1.LE FRENCH DENTON COUNTY TAX ASSESSOR COLLECTOR PO BOX 90223 DENTON, TX 76202-5223 + ,, I- I 11, 11111.11111161+11. AMOUNT DUE IF PAID ON OR BEFORE -JANUARY 31, 2015 $50.31 PENALTY AND INTEREST WILL BE DUE ON FEBRUARY 1, 2015 IF ACCOUNT IS NOT PAID IN FULL. THE PENALTY AND INTEREST RATES WILL INCREASE ON THE FIRST` DAY OF EACH MONTH. IF PAID IN I RATE AMOUNT DUE FEB 2015 7% 53.83 MAR 2015 9% 54.84 APR 2015 11% 55.85 0000005081 0000005183 0000DO5484 0000000D00 C 00 2014 00001253540 8 MICHELLE FRENCH DENTON COUNTY TAX ASSESSOR COLLECTOR PO BOX 90223 DENTON, TEXAS 76202 940-349-3500 PROPERTY ACCOUNT NUMBER 6314BODEN I M 11111111 [lit E 13 IN 011111 PROPERTY OWNER MINERAL VALUE PERSONAL PROPERTY PROPERTY LEGAL DESCRIPTION TOTAL MARKET VALUE CITY OF DENTON 4,678,008 WEST PARK ADDN PH 2 BLK A LOT 10 0.689750 v DENTON ISD 4,678,008 255 -a PACCAR INC 1.540000 5b DENTON COUNTY 4,678,008 777106TH AVE NE 0.272200 17.56 SITUIS: WESTERN BLVD 13ELI-EVUE WA 98004-5027 EXEMPTIONS: Ag PROPERTY VALUES IMPROVEMENT VALUE NON H'0MESITE IMPROVEMENT LAND MARKET VALUE I ASSESSMENT RATIO: 100% 1 I JURISDICTION MINERAL VALUE PERSONAL PROPERTY AG VALUE TOTAL MARKET VALUE I JURISDICTION EXEMPTIONS TAXABLE VALUE TAX RATE BASE LEVY CITY OF DENTON 4,678,008 6,452 0.689750 44.50 DENTON ISD 4,678,008 6,452 1.540000 99,36 DENTON COUNTY 4,678,008 6,452 0.272200 17.56 ',ADDITIONAL CITY SALES TAX RLUUULU YUUR U I T AL) VAWKLM IAA 0 T a I.D:). TOTAL AMOUNT DUE IF PAID ON OR BEFORE) VARY 31.,2015,) E $16=1.42 Taxes are due upon receipt of statemen Pa ment-4--tions on back. 130wri hollom portion with your payment in the enclosed Povelopp. Payments may to 7-10 days to post. PROPERTY OWNER AND MAILING ADDRESS PROPERTY ACCOUNT NUMBER PACCAR INC 631480DEN 777 106TH AVE NE 131-11EVUE, WA 98004-5027 11H99111111H Rd HIM 111111 Over 65/Disabled Person/Disabled Veteran Quarter Pay Request AMOUNT DUE 'Pleasp Sign and send in with first !,payment beforo 113112015. I am currently receiving an Over 65 /Disabled Person/Disabled Veterans IF PAID ON OR BEFORE exemption and request the 1/i payment option on my 2014 property taxes. JANUARY 31, 2015 $161.42 X PENALTY AND INTEREST WILL RE 014-FEBRUARY 1, 2015 IF ACCOUNT IS NOT PAID IN FULL, THE PENALTY AND INTEREST RATES WILL INCREASE ON THE FIRST DAY OF EACH MONTH. MICHELLE FRENCH DENTON COUNTY TAX ASSESSOR COLLECTOR P0 BOX 90223 DENTON, TX 76202-5223 1, tIll 11111 111111'.1d 1. 111.1. 1111,1111111 -,1 ..... 11,11111,11t TF-�PATI?J;i P & 7, BATE )'410mNT DU r, FEB 2015 7% 172.72 MAR 2015 9% 175.96 APR 2015 11% 179.18 MICHELLE FRENCH DENTON[OUNTY TAX ASSESSOR COLLECTOR p0 BOX 9DZZ3 DEwTom' TEXAS /aaoz 940'349-3508 2014 OHIGINAL TAX STATEMENT PROPERTY ACCOUNT NUMBER I PROPERTY OWNER PROPERTY LEGAL DESCRIPTION PERSONAL —PROPERTY -TRUCK MF—G-- 3200 AIRPORT RD, DENTON PLANT LOCAT1W 25514 5B PACCaR|wC PQ BOX 151G BELLEVUE WA 98009-1518 1111/111w11.||U|'`|||/O"|J|!"|J||||y|O||/J,U||.N" PROPERTY VALUES IMPROVEMENT VALUE NON I-IOMESITE IMPROVEMENT LAND MARKET VALUE EXEMPTIONS. Freeport, Pollution Control [ASSESSMENT RATIO: zOV% 1 MINERAL VALUE PERSONAL Z VALUE TOTAL MARKET VALUE 148.262,8001 ' JURISDICTION EXEMPTI NS TAXABLE VALUE TAX i5�TE BASE LEV CITY OF DENTON DENTONISD 85,151,385 0,689750 435,310.� DENFON COUNTY 85,151,385 85,151,385 63,111,415 63,111,415 1.540000 0.272200 9 71,915 -Y 171,789.2 --- , -- — ' '~ '~^~^^^` '"""' p '+",,'n,, ~� TOTAL AMOUNT DUE |F PAID ON OR BEF6`RE JANUARY 31, 2015 Taxes are due upon receipt of statemm options on `back...._-- xw�^bolloat portion wimvourpwmw rinmoancloseaon*iop=p=Yrnonuxlxtamc7-/o&iysmpo4,,t, ~~CP PROPERTY OWNER AND MAILING ADDRESS pu BOX 1sm ueumus.wwon000J5za Over 65/Disabled P Pay nenves 'Please sg"�ms�d��m��x payment uvm�usimo/� - / Lim currently receiving an Over aS0imab|nd Person/Disabled Veterans exemption and request the y payment Option o^my2o14 property taxes, MICHELLE FIRr_NCjj uunzom coowrx TAX xnxn000e coLIocToe po onz 90223 oomzON, rx 76202-s223 PROPERTY ACCOUNT NUMBER ER AMIOUNTDUE IF PAID ON OR 13EFORE JANUARY 31, 2015 $1,5791016.04 PENALTY AND INTEREST WILL ns DUE om FEBRUARY 1_2015 IF ACCOUNT oNOT PAID |w FULL. THE PENALTY AND /�nEST RATES WILL INCREASE ON THE FIRST DAY OF EACH MONTH. TF -NATP -TH P "A 'I RATE AMOUNT DUE FE82OI5 7% 1.689.547]7 MAR 2015 9% 1.72I.127,50 APR 2015 11% I.752.707.00 01S79O1k04 0168954717 0172112750 OOODOOOOOO { 00 2014 O0000300903 2 MICHELLE FRENCH DENTON COUNTY TAX ASSESSOR COLLECTOR PO BOX 90223 DENTON, TEXAS 76202 940- 349 -3500 2014 ONGINAL TAX STATEMENT PROPERTY ACCOUNT NUMBER 243029DEN 1111111 HI fill 1 IN 11 IN 11111 iff 111111 PROPERTY OWNER PROPERTY LEGAL DESCRIPTION I PETER BILTADDN BLK A LOT 1R 17-12 5B PACCAR INC ATTN TAX DEPT PO BOX 1518 BELLEVUE WA 98009-1518 PROPERTY VALUES IMPROVEMENT VALUE NON HOMESITE IMPROVEMENT LAND MARKET VALUE I SITIUS: 3200 AIRPORT RD I EXEMPTIONS: f ASSESSMENT RATIO. 100%0 u /) 15,644,000 15,644,000 4356,000 '35 '000 � MINERAL VALUE PERSONAL PROPERTY AG VALUE TOTAL MARKET VALUE 20,000,000 JURISDICTION EXEMPTIONS TAXABLE VALUE TAX RATE BASE LEVY CITY OF DENTON 0 20,000,000 0.689750 137,950.00 OENTON ISD 0 20,000,000 1.540000 308,000.00 DENTON COUNTY 0 20,000,000 0.272200 54,440.00 "ADDITIONAL CITY SALES TAX REDUCED YOUR CITY AD VALOREM I AX BY 5 13,339.UU, TOTAL AMOUNT DUE If PAID ON OR BEF RRE JANUARY 31, 2015 E500,390.017] Taxes are due upon receipt of statement. PayhleMcfptions op back.,-,- f3murn bottom portion with your payment in the enclosed envelope. fayotints may take 7-10 days to post. PROPERTY OWNER AND MAILING ADDRESS PROPERTY ACCOUNT NUMBER PACCAR INC 243029DEN ATTN: TAX DEPT PO BOX 1518 Brl_LrVUF� WA 9BOD9-1 518 Over 65/Disabled Person/Disabled Veteran Quarter Pay Request AMOUNT DUE `Pleaso sign and send in wish first III payment before 113112015. IF PAID ON OR BEFORE I nin currently receiving an Over 65 /Disabled Person/Disabled Veterans JANUARY 31, 2015 $500,390.00 exemption and reqUeSt the 1/t payment option on my 2014 property taxes. PENALTY AND INTEREST WILL BE DUE ON FEBRUARY 1, 2015 IF X ACCOUNT 15 NOT PAID IN FULL THE PENALTY AND INTEREST RATES WILL INCREASE ON THE FIRST DAY OF EACH MON111. HICHELLP FRENCH DENTON COU74TY TAX ASSESSOR COLLECTOR PO BOX 90223 DENTON, TX -16202-5223 TF� PA,ID IN P & I RATE Amourr DOE FEB 2015 7% 535,417.30 MAR 2.015 9% 545,425.10 APR 2015 11% 555,432.90 FAHIBITC: Ordinance Page 18 .. . .... . .... . ...... . . . ...... NO, ORDINANCE NO. AN ORDINANCI'," AUTHORIZING 'THE MAYOR 'TO EXECUTE A TAX ABATEMENT AGREEMENT WITH PETERBILT MOTORS COMPANY; SETTING FORTH ALL 'THE REQUIRED TERMS OF THE -TAX ABATEMENT AGREEMENT IN ACCORDANCE WITH THE TERMS OF CIIAP'FER 312 OF THE TEXAS 'TAX CODE; SETTING FORTH THE VARIOUS CONDITIONS PRECEDENT TO PETERBILT MOTORS COMPANY LP, RE- CEIVING THE TAX ABATEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on the 17th day of February, 2015, after a public hearing duly held in ac- cordance with §201 of Chapter 312, Texas Tax Code (the "Act"), the City Council passed Ordi- nance No. 2015- (the "Ordinance") establishing Reinvestment Zone No. XII, City of Denton, Texas as a commercial /industrial reinvestment zone for tax abatement (the "Zone"), as authorized by Title 3, Chapter 312, Subchapter B of the Act; and WHEREAS, on the 9th day of December, 2014, Peterbilt Motors Company, a division of PACCAR Inc, a Delaware Corporation ("Peterbilt Motors Company"), submitted an application for tax abatement with various attachments to the City concerning the contemplated use of cer- tain property located within the Zone; and WHEREAS, the City Council finds that the contemplated use of the premises and the contemplated improvements to the premises, as indicated by Peterbilt Motors Company, are consistent with encouraging the development of the Zone in accordance with the purposes for its creation and are in compliance with the Denton Tax. Abatement Policy; and WHEREAS, the City Council deems it in the public interest to enter into a Tax Abate- ment Agreement with Peterbilt Motors Company; NOW, THEREFORE, THE COUNCIL, OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings contained in the preamble to this Ordinance are true and cor- rect and are adopted as a part of the whole Ordinance. SECTION 2. The City Council finds and determines the following: A. 'The contemplated use of the premises and the contemplated improvements of the premises, as indicated by Peterbilt Motors Company, are consistent with encouraging the development of the Zone in accordance with the purposes of its creation and are in compliance with the Denton Tax Abatement Policy. B. The City Council finds that the improvements sought by Peterbilt Motors Company within the Zone are feasible and practical and would be a benefit to the land to be in- cluded in the Zone and to the City after the expiration of the Tax Abatement Agree- ment to be entered into with Peterbilt Motors Company. Page I of 3 . ...... . .. - . ..... . . ....... . . . . . ........ C. The City Council finds that the 'Tax Abatement Agreement contains all the terms which are mandatorily required to be included in any tax abatement agreement under §312.205 of the Act. D. In accordance with §312.2041 of the Act, the City Council finds that not later than the date on which the City Council considered this ordinance, and not later than the sev- enth day before the date the City enters into a 'Fax Abatement Agreement with Peterbilt Motors Company, that the City Manager, through the Director of Economic Development, who are hereby designated and authorized by the City Council to give such notice, delivered to the presiding officer of the Denton Independent School Dis- trict and Denton County a written notice that the City intends to enter into this Tax Abatement Agreement with Peterbilt Motors Company, and that this notice included a copy of the proposed Tax Abatement Agreement in substantially the I"orm of the Tax Abatement Agreement attached to this ordinance. E. Before the passage of this Ordinance, the City Council held a public hearing in ac- cordance with §312.201 of the Act and created Reinvestment Zone No. XIL F. The City Council finds that the project within Reinvestment Zone No. XII is a rede- velopment and expansion of an existing business as defined in the "Fax Abatement Policy and requires additional incentives to promote economic development that gen- erally satisfies the requirements of the policy and the City Council hereby authorizes a tax abatement of a maximum of 70% on the increased valuation of the Taxable Real Property improvements and tangible personal property as more particularly described in the Tax Abatement Agreement attached hereto and made a part hereof by reference as Exhibit "A" (the "'Fax Abatement Agreement"). SECTION 3. The Mayor, or in his absence, the Mayor Pro Tem, is hereby authorized to execute the Tax Abatement Agreement with Peterbilt Motors Company in substantially the same form as the Tax Abatement Agreement attached as Exhibit "A". SECTION 4. The City Council hereby instructs and authorizes the City Manager to in- spect, audit, and evaluate the progress of Peterbilt Motors Company to determine if it has met all of the conditions of the attached 'Tax Abatement Agreement prior to the tax abatement going into effect. SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton hereby declares that it would have enacted such remaining portions despite any such validity. SECTION 6. This Ordinance shall become effective immediately upon its passage and approval. Page 2 of 3 ..... ...... . PASSED AND APPROVED this the _ day of 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY as APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CHRIS WATTS, MAYOR Page 3 of 3 mm . . ........ EXHBITD Delegation of Authority f hereby authorize Tom Loughran, Tax Director oil' PACCAR Inc. (the "Company"), in the name and on behalf of the Company, to execute the tax abatement agreement, and all related docu- ments, between the Company and the City, County and School District of Denton, 'Texas. PACCAR By: Ronald E. Armstrong, Chief Executive Officer Page 19 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -153, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: February 17, 2015 SUBJECT Consider nominations /appointments to the City's Boards and Commissions: Health & Building Standards Commission; Human Services Advisory Committee; Parks, Recreation & Beautification Board; 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. Exhibits Exhibit 1 - Nominations Sheet Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 1 of 1 Printed on 2/12/2015 BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Health & Building Standards Commission Alternate Alternate Human Services Advisory Committee All All Parks, Recreation & Beautification Board Ryan Tara Mills [Traffic Safety Commission Ryan R - Reappointment N - New Nomination