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August 18, 2015 Agenda
City f Denton City Hall Y 215 E. McKinney St. Denton, Texas 76201 tmrmruotA@Itl www.cityofdenton.com Dt�NT N Meeting Agenda City Council Tuesday, August 18, 2015 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, August 18, 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 August 18, 2015. 3. Work Session Reports A. ID 15 -623 Receive a report, hold a discussion and give staff direction regarding a potential Economic Development Chapter 380 Grant Agreement for the Victor Expansion Project (Mohr Denton, LLC, a Texas Limited Liability Company and Victor Equipment Company, a Delaware corporation) located at 2800 Airport Road, Denton, Texas 76207. Attachments: Exhibit 1 Incentive Application Exhibit 2 Incentive Agreement Exhibit 3 Certificate of Compliance B. ID 15 -647 Receive a report; hold a discussion, and give staff direction regarding the 2015 -16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. 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 -632 Consultation with 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 a proposed economic development incentive agreement for the Victor Expansion Project (Victor Technologies International, Inc. and Mohr City ofDenton Page I Printed on 811412015 City Council Meeting Agenda August 18, 2015 Partners Inc.) located at 2800 Airport Road, Denton, Texas 76207. This discussion shall include commercial and financial information the City Council has received from the Victor Expansion Project 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. [ID 15 -633] B. ID 15 -700 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 acquisition of real property interests located in the S. McCracken Survey, Abstract Number 817, located generally in the 2200 block of East Sherman Street, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and 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. (Williams Rentals LLC - Denton Fire Station No. 4 Rebuild) [ID 15 -701] C. ID 15 -581 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests, to wit: Lot 1, Block 2 of the Municipal Utility Addition as shown by the plat thereof recorded in Cabinet G Page 346 of the P.R.D.C.T., located in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, switch stations and power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Brinker Substation] [ID 15 -718] D. ID 15 -652 Certain Public Power Utilities: Competitive Matters - -- Under Texas Government Code, Section 551.086. Receive competitive public power competitive information and financial information from staff regarding the proposed FY 2015 -2016 operating budget for City ofDenton Page 2 Printed on 811412015 City Council Meeting Agenda August 18, 2015 E. ID 15 -716 F. ID 15 -717 G. ID 15 -762 H. ID 15 -748 Denton Municipal Electric ( "DME ") including without limitation, proposed rates for DME for FY 2015- 2016, expected revenues, expenses, commodity volumes, and financial commitments of DME; discuss, deliberate and provide staff with direction. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests generally located in Denton, Denton County, Texas, East of Bonnie Brae St and West of N Locust St, and terminating at DME's Northlakes substation just South of Loop 288, for the construction, expansion and use of electric power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Bonnie Brae to North Lakes TM line] Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests in the E. Puchalski Survey, Abstract No. 996, City of Denton, Denton County, Texas, and being generally located in the 900 block of W. Collins Street (Block 4, Hillside Addition, City and County of Denton, Texas). Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Eagle Substation] 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 property located at 1003, 1005 and 1007 E. Sycamore, and A1184a H. Sisco, Tr 15, 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. Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's attorneys regarding ID 15 -744 of the August 18th, 2015 Regular Meeting Agenda, as it concerns legal issues associated with that item where a public City ofDenton Page 3 Printed on 811412015 City Council Meeting Agenda August 18, 2015 discussion of this legal matter would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. L ID 15 -753 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with and provide direction to City's attorneys regarding legal issues and legal strategies associated with the City's pole attachments and pole attachment agreements; a public discussion of these legal issues and legal strategies 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. J. ID 15 -754 Consult with Attorneys - Under Texas Government Code Section 551.071; Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Consult with and provide direction to City's attorneys regarding legal issues and legal strategies associated with the anticipated access, occupation and /or use of the City's right of way for fiber and /or fiber conduit by Zayo Group, LLC, pursuant to an Exchange Agreement with the Denton Independent School District and the County of Denton, Texas effective July 28, 2015; a public discussion of these legal issues and legal strategies 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. 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 -742 Mayor's Summer Youth Jobs Program City ofDenton Page 4 Printed on 811412015 City Council Meeting Agenda August 18, 2015 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Citizen Reports from Members of the Public. 1. ID 15 -746 Monica Jones regarding a complaint on Animal Control and Code Enforcement. 2. ID 15 -689 Willie Hudspeth regarding City Hall. 3. ID 15 -750 Matthew Sallack regarding the positive effect of the Denton Community Market. C. Additional Citizen Reports. 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received 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 — T). 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 — T 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 -602 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for upgrading Denton Municipal Electric (DME)'s Geographical Information System (GIS) and related software systems including ArcGIS and ArcFM Database, Responder Outage Management System (OMS), Fiber Manager, ArcFM for Silverlight, ArcFM Mobile Replication, ArcFM Mobile Inspector and related custom code from version 10.1 to 10.2.1; and providing an effective date (RFP 5770- awarded to Power Engineers, Inc. in the not -to- exceed amount of $108,000). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1 -PUB Agenda Sheet Exhibit 2- Evaluation and Ranking Sheet Exhibit 3 -PUB Draft Minutes Exhibit 4- Ordinance Exhibit 5- Contract B. ID 15 -667 Consider approval of a resolution authorizing the filing and acceptance of a contract with the Texas Commission of Environmental Quality (TCEQ) for a Texas Emissions Reduction Plan Rebate Grant; delegating and authorizing Arden Vance Kemler, Solid Waste & Recycling Services General Manager, or his designate, to act on behalf of the Solid Waste & Recycling Department in all other matters that are related to this project application, pledging that if funding for this capital project is received, the City of Denton will comply with all project requirements of the City ofDenton Page 5 Printed on 811412015 City Council Meeting Agenda August 18, 2015 Texas Commission on Environmental Quality, and the State of Texas, and providing for an effective date. Attachments: Exhibit 1 TCEQ Rebate Grant Contract Exhibit 2 TCEQ Rebate Grant Resolution C. ID 15 -668 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a first amendment to an agreement by and between the City of Denton, Texas and Keep Denton Beautiful, Incorporated, relating to developing programs enhancing the appearance and environment of the City of Denton, Texas; authorizing the expenditure of funds therefor; providing for retroactive approval, confirmation and ratification thereof. Attachments: Exhibit 1 - Ordinance Exhibit 2 - 2015 Amendment to Keep Denton Beautiful Agreement D. ID 15 -724 Consider adoption of an ordinance of the City of Denton, Texas, approving a tree rebate program for the public purpose of increasing the tree canopy within the City; providing the authority for issuance of tree rebates; committing proceeds from the tree fund; and providing an effective date. Attachments: Exhibit 1 Tree Rebate Ordinance Exhibit 2 Tree Rebate Program Application Form E. ID 15 -734 Consider adoption of an ordinance of the City of Denton, Texas, approving certain tree adoption programs for the public purpose of increasing the tree canopy within the City; committing proceeds from the tree fund; and providing an effective date. Attachments: Exhibit 1 - Tree Adoption Ordinance Exhibit 2 - 2015 Amendment to Keep Denton Beautiful Agreement Exhibit 3 - KDB Board Resolution for New Tree Fund - Supported Tree Programs F. ID 15 -691 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to enter into an Interlocal Agreement with Denton County for the County to provide Property Tax Billing and Collections Services for the City of Denton; providing a savings clause; and providing an effective date. Attachments: Exhibit 1 - Ordinance G. ID 15 -692 Consider approval of a resolution nominating one member to the Board of Managers of the Denco Area 9 -1 -1 District; and declaring an effective date. Attachments: Exhibit 1 Denco Letter Exhibit 2 Resolution H. ID 15 -697 Consider adoption of an ordinance of the City of Denton, Texas approving the Meet and Confer Agreement between the City of Denton and the Denton Police Officers Association, and providing an effective date. Attachments: Exhibit 1- Police Meet and Confer Agreement Summary Matrix Exhibit 2 - Police Ordinance and Agreement L ID 15 -698 Consider adoption of an ordinance of the City of Denton, Texas approving the Meet and Confer Agreement between the City of Denton and the Denton Fire Fighters City ofDenton Page 6 Printed on 811412015 City Council Meeting Agenda August 18, 2015 Association, and providing an effective date. Attachments: Exhibit 1- Fire Meet and Confer Agreement Summary Matrix Exhibit 2. Fire Ordinance and Agreement J. ID 15 -699 Consider adoption of an ordinance of the City of Denton, Texas authorizing contribution to the Denton Firemen's Relief and Retirement Fund by the City; and establishing an effective date. Attachments: Exhibit 1 Article 12 Pension Exhibit 2 Ordinance K. ID 15 -701 Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to (1) 0.529 acre tract and (2) 0.480 acre tract, both tracts located in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached thereto and made a part thereof, located generally in the 2200 Block of East Sherman Street (the "Property Interests "), for the public use of construction of Fire Station Number 4, authorizing the City Manager or his designee to make an offer to (1) Williams Rentals, LLC, a Texas limited liability company (the "OWNER "); (2) successors in interest to the Owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Two Hundred Thirty Three Thousand Five Hundred Dollars and No Cents ($233,500.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached thereto and made a part thereof as Exhibit `B "; authorizing the expenditure of funds therefor; making findings; authorizing relocation expenses and advisory services, if applicable; providing a savings clause; and providing an effective date. (Williams Rentals LLC - Denton Fire Station No. 4 Rebuild) Attachments: Exhibit 1 Location Map Exhibit 2 Site Map Exhibit 3 Ordinance L. ID 15 -703 Consider adoption of an ordinance providing for the expenditure of funds for the emergency repair of fuel lines located at the City of Denton Service Center in accordance with provisions of Section 252.022 of the Local Government Code exempting such purchases from requirements of competitive bidding; and providing an effective date (File 5856- awarded to United Pump Supply in the amount of $60,942.25). Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Emergency Declaration Exhibit 3 -Final Invoice Exhibit 4- Ordinance M. ID 15 -704 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 the design of the City of Denton Traffic Control and Communications Building; providing for the expenditure of funds therefor; and providing an effective date (File City ofDenton Page 7 Printed on 811412015 City Council Meeting Agenda August 18, 2015 5864- awarded to WRA Architects, Inc. in an amount not -to- exceed $122,500). Attachments: Exhibit 1- Ordinance Exhibit 2- Contract N. ID 15 -706 Consider adoption of an ordinance approving the expenditure of funds for the purchase of two high density cross linked polyethylene tanks for the storage of ferric chloride for the Pecan Creek Water Reclamation Plant Phosphorous Removal Project which is available from only one source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from requirements of competitive bids; providing for the expenditure of funds therefor; and providing an effective date (File 5909- awarded to Cortrol Process Systems, Inc. in the not -to- exceed amount of $68,156). The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1- Quotes Exhibit 2 -Staff Memo Exhibit 3 -PUB Minutes Exhibit 4- Ordinance O. ID 15 -707 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Charter Transportation Services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5803- awarded to Cowtown Bus Charters, Inc. in the three (3) year not -to- exceed amount of $200,000). Attachments: Exhibit 1- Pricing Exhibit 2- Ordinance Exhibit 3- Contract P. ID 15 -714 Consider adoption of an ordinance providing authorization for and ratification of a Landscape Maintenance Agreement with the Texas Department of Transportation for the purpose of providing all required maintenance of certain landscape improvements located within the right of way of state highway routes; and, providing an effective date. Attachments: Exhibit 1 Ordinance Q. ID 15 -733 Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of Ordinances to revise the school safety speed zones and times for various schools; to add a school safety speed zone for Pecan Creek Elementary; providing a penalty of a fine not to exceed two hundred dollars ($200.00); providing a severability clause; providing for publication; and declaring an effective date. The Traffic Safety Commission recommends approval (5 -0). Attachments: Exhibit 1- Project Area Map Exhibit 2- Ordinance R. ID 15 -739 Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment 002 for Project Utility Adjustment Agreement No. 35E -U- 0503" which City ofDenton Page 8 Printed on 811412015 City Council Meeting Agenda August 18, 2015 amends the original "Project Utility Adjustment Agreement" in the amount of $1,729,820.01, $50,334.75 of which is payable by the City of Denton for City requested betterments; facilitating and authorizing water and wastewater line relocations for the Interstate Highway 35E project, in substantial conformity with the previously executed Texas Department of Transportation agreements with the Developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and Lane Construction company; and the Texas Department of Transportation; authorizing a quitclaim deed; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 - Ordinance Exhibit 2 - Utility Adjustment Agreement Amendment S. ID 15 -744 Consider adoption of an ordinance of the City of Denton, Texas, repealing Ordinance No. 2013 -248 and enacting a new ordinance relating to planning and development fees as it concerns: gas well drilling and production in the City of Denton and its extraterritorial jurisdiction; road damage remediation fee calculations due to damage to City of Denton roadways from gas well drilling and production activities in the city; assessment of penalties and interest; and setting an effective date. Attachments: Exhibit 1 Ordinance T. ID 15 -747 Consider approval of the minutes of July 21, 2015. Attachments: Exhibit 1 - July 21, 2015 minutes 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -633 Consider adoption of an ordinance of the City of Denton, Texas approving an Economic Development Agreement between the City of Denton and Victor Equipment Company for an incentive grant involving development at the property located at 2800 Airport Road, Denton, Texas 76207 and for which the Economic Development Partnership Board recommends approval; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. Attachments: Exhibit 1 Ordinance B. ID 15 -666 Consider nominations /appointments to the City's Boards and Commissions: Animal Shelter Advisory Committee; Health & Building Standards Commission; Historic Landmark Commission; Human Services Advisory Committee; Parks, Recreation and Beautification Board; Planning and Zoning Commission; and Public Utilities Board. Attachments: Exhibit 1 Nominations Sheet for 2015 C. ID 15 -737 Consider appointing a nominating committee to recommend appointees to serve on the Economic Development Partnership Board. City ofDenton Page 9 Printed on 811412015 City Council Meeting Agenda August 18, 2015 Attachments: Exhibit 1 Ordinance No. 2015 -074 Exhibit 2 Ordinance No. 2014 -009 Exhibit 3 Ordinance No. 2011 -042 Exhibit 4 Ordinance No. 2003 -258 6. PUBLIC HEARINGS A. ID 15 -690 Hold a public hearing on a proposal to adopt a tax rate of $0.696380 per $100 valuation, which will exceed the lower of the effective or rollback tax rate. Attachments: Exhibit 1 - Notice of Proposed Tax Rate B. SI15 -000lb Hold a public hearing and consider adoption of an ordinance amending Section 35.13.7.A.7.e.i of the Denton Development Code (DDC) pertaining to permitted uses of the Tree Fund. The Planning and Zoning Commission recommends approval (4 -0). Attachments: Exhibit 1 - Staff Report Exhibit 2 - Recommended Code Amendment 2 Exhibit 3 - OrdinanceTree Fund Code Amendment Exhibit 4 - KDB Board Resolution for New Tree Fund - Supported Tree Programs Exhibit 5 - Three -Year Budget Poiections KDB Private Property Tree Planting f 7. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Citizen Reports from Members of the Public. 1. ID 15 -751 Vicki Oppenheim regarding Denton Community Market - snapshot of emerging Denton. 2. ID 15 -752 Kati Trice regarding the Denton Community Market. 3. ID 15 -755 Ryan Crocker regarding the Denton Community Market. 4. ID 15 -756 Emily White regarding the Denton Community Market. 5. ID 15 -757 Jason Schreiber regarding the Denton Community Market. 6. ID 15 -758 Kimberly Bien regarding the Denton Community Market. 7. ID 15 -759 Jeffrey Rous regarding funding for the Denton Community Market. 8. ID 15 -760 Agatha Biens regarding the Denton Community Market. 8. CONCLUDING ITEMS City of Denton Page 10 Printed on 811412015 City Council Meeting Agenda August 18, 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 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 811412015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -623, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George Campbell Date: August 18, 2015 SUBJECT Receive a report, hold a discussion and give staff direction regarding a potential Economic Development Chapter 380 Grant Agreement for the Victor Expansion Project (Mohr Denton, LLC, a Texas Limited Liability Company and Victor Equipment Company, a Delaware corporation) located at 2800 Airport Road, Denton, Texas 76207. BACKGROUND Victor Technologies is a global manufacturer dedicated to developing innovative advanced cutting, gas control and specialty welding solutions. Founded in 1913 by L.W. Stettner, the original San Francisco manufacturing operations were relocated to their new headquarters in Denton in the mid- 1960s. Victor Technologies is planning to expand the existing Victor Equipment Company facility, located at 2800 Airport Road. The project will include renovations and improvements to their existing facility. Improvements to the existing operation will create approximately 30,000 square feet of Research and Development space. A new 185,400- square -foot warehouse and remodeled parking would complete the renovations. The current operation employs 414 full time employees. Victor has a distribution center in DFW that employs about 100 people that will be transferred to the new facility in Denton. Over the next three years, Victor will create an additional 100 new jobs with an average wage of $29.93 per hour. RECOMMENDATION The Economic Development Partnership Board recommends approval of an incentive for Victor Technologies equal to 65 percent of the increase in the City's ad valorem taxes for seven years while maintaining a minimum of 85 percent of new jobs created with commensurate salaries. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 15, 2015, the Economic Development Partnership Board received a report, held a discussion and made a recommend to approve an incentive for Victor Technologies equal to 65 percent of the increase in the City's ad valorem taxes for seven years while maintaining 85 percent of jobs with commensurate salaries. The motion was approved unanimously with a vote of 5 -0. City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -623, Version: 1 FISCAL INFORMATION Based on the financial information provided in Victor Technologies incentive agreement application, staff estimates an annual payment of $71,734 per year for a total incentive package of approximately $ 573,872. EXHIBITS Incentive Application Draft Incentive Agreement, executed Agreement to follow under separate cover Certificate of Compliance Respectfully submitted: Aimee Bissett Economic Development Department Prepared by: Christina Davis Economic Development Marketing Specialist City of Denton Page 2 of 2 Printed on 8/13/2015 March 13, 2015 Aimee Bissett Director, Economic Development City of Denton 215 E McKinney Ave Denton, TX 76201 a,,,ee, brssettt' Re: Economic Incentives Denton Economic Development Partnership: This letter is a request from Victor Technologies for economic incentives related to a possible expansion project. Incentives are critical to our decision making process and evaluating the community of Denton on a long -term basis. CompanX Victor Technologies is a global manufacturer dedicated to developing innovative advanced cutting, gas control and specialty welding solutions. Founded in 1913 by L.W. Stettner, a welder by trade suffered the loss of an eye from a welding accident and subsequently set out to design and builds better, safer welding products. His designs for welding and cutting torches and gas regulators were quickly accepted and the original San Francisco -based Victor Oxy- Acetylene Welding Equipment Company grew rapidly. Stettner's "safety oriented" designs resulted in numerous patents and firsts including spiral mixers, gooseneck nozzles, and safety regulators. Victor's product line and business volume grew steadily and expanded capacity was needed. The original San Francisco manufacturing operations were relocated to new headquarters in Denton, TX in the mid 1960's. Project Description Victor is evaluating the feasibility of expanding their operation in Denton, TX. The project could result in a new 185,400 square foot facility along with renovations and improvements to their existing facility. Improvements to the existing operation would create approximately 30,000 square feet of R &D space. Capital investment for the project is estimated to be $26,000,000 of which $12,000,000 being the cost to purchase the existing facility. Job Creation The current operation employs 414 full time employees. Victor has a distribution center located in Roanoke, TX that employs 78 people, which would transfer to the new facility in Denton if the expansion project were approved. The average wage for the 492 jobs is $27.79 per hour. Over the next three j,ears, Victor anticipates creating 1.2; jabs with an average rage of.$33. 5 per hater. Community Victor Technologies has been a part of the Denton Business Community for over 40 years. Victor has been involved with the following activities: • Sponsor Denton County Livestock Association Youth Fair - Speech contest and welding project • Annual Run For Life; American Heart Association • Sponsor for Special Olympics • Provide welding products for silent auctions to support various Volunteer Fire Departments in N TX • Advertise in Denton High School programs • Member of the Chamber of Commerce MOHR P A R T N E R S With Victor's continued commitment to the Denton Community, we would appreciate your consideration for incentives under any of the applicable programs provided by the City of Denton or the State of Texas. The incentives are vital to Victor's final decision as the overall economics will be the most critical factor in the decision to move forward with this project. Thank you for your time and consideration, Derith M. Jarvis Managing Partner, Site Selection & Economic Incentives Practice Mohr Partners, Inc. 2014 Tax Abatement Policy CITY OF 1 • City of Denton Incentive Application City of Denton Department of Economic Development Denton, Texas 76201 (940) 349 -7776 (940) 349 -8596 FAX www.ciiyofdenton.com Aimee.BissettLcityofdenton.com Page 2 of 9 2014 Tax Abatement Policy INCENTIVE APPLICATION CITY OF DENTON, TEXAS 1. Property Owner Mohr Denton LLC. Company or Project Name THE ESAB GROUP, INC DBA, Victor Technologies 14643 Dallas Parkway Dallas, TX 75254 Telephone (214) 273 -8656 Fax No. (972) 960 -3196 www.mohrcat).com Contact Name: Gary Horn Title: Chief Investment Officer Mailing Address: 14643 Dallas Parkway, Suite 1000, Dallas, TX 75254 Telephone: (214) 273 -8656 Fax No. (972) 960 -3196 Email Address: garv(a-),mohrcau.com 2. Provide a chronology of plant openings, closing and relocations over the past 15 years. 1967 — Denton, TX Operation opened 1999 — Abilene, TX Operation relocated to Denton; 2001 Abilene site closed 2004 — Wichita, KS Operation relocated to Denton 2004 — Roanoke, TX warehouse opened Summary of Plant Expansions: Year sq.ft. Descrh ition 1966 95,850 Odg naN Plant & Offices 1969 8,474 North Offices 1974 53,434 Nant & South offices & Cafeteria 1976* 6,143 Chip roomn/DMP treatment (*estimated rear) 1977 3,235 (North Offices & Lobby 1979 30v225 Tech Building, iT, Lab, Training; Room 1981 100720 2nd Floor Of 1997* 10,753 B3.arstock Warehouse (*estimated year) 2007* 14,765 Awnings/ B.arstock addition (*estimated year) Page 3 of 9 2014 Tax Abatement Policy Provide a record of mergers and financial restructuring during the past 15 years. April 2014: Victor Technologies was acquired by Colfax Corporation (NYSE: CFX), a leading global manufacturer of gas and fluid handling and fabrication technology products and services. • September 2012, acquired Co -Vent Group Inc. ( "Co- Vent "), a leading supplier of industrial fans based in Quebec, Canada. • July 2013, acquired Clarus Fluid Intelligence, LLC ( "Clarus "), a domestic supplier of flushing services for marine applications primarily to U.S. government agencies, with primary operations in Bellingham, Washington. • September 2013, acquired certain business units of The New York Blower Company, including TLT- Babcock Inc. ( "TLTBabcock ")and Alphair Ventilating Systems Inc. ( "Alphair "), suppliers of heavy duty and industrial fans in Akron, Ohio and Winnipeg, Manitoba, respectively. • November 2013, acquired CKD Kompresory a.s. (" CKDK "), a leading supplier of multi -stage centrifugal compressors to the oil & gas, petrochemical, power and steel industries, based in Prague, Czech Republic. • November 2013, acquired the remaining ownership of Sistemas Centrales de Lubrication S.A. de C.V. ( "Sicelub "), previously a less than wholly owned subsidiary in which the Company did not have a controlling interest. Sicelub provides flushing services to Central and South American customers primarily in the oil, gas and petrochemical end market. • November 2013, acquired the global infrastructure and industry division of Flakt Woods Group ( "GII "), an international supplier of heavy duty industrial and cooling fans. • May 2014, acquired the remaining ownership of Howden Thomassen Middle East FCZO ( "Howden Middle East"), increasing our ownership from 90% to 100 %. • May 2012, acquired the remaining ownership of CJSC Sibes ( "Sibes "), a less than wholly owned Russian subsidiary in which the Company did not have a controlling interest. • October 2012, acquired approximately 91 % of Soldex S.A. ( "Soldex "), a leading South American supplier of welding products. In August 2013, we increased our ownership of Soldex to approximately 99 %. • April 2014, acquired Victor Technologies Holdings, Inc. ( "Victor "), a global manufacturer of cutting, gas control and specialty welding solutions (the "Victor Acquisition "). • July 2014, acquired the remaining ownership of ESAB -SVEL ( "Svel "), increasing our ownership from 51% to 100% 4. Will the occupants of the project be owner or lessee? If lessee, are occupancy commitments already existing? Lessee; currently a lease is in place for the existing site located at 2800 Airport, Denton, TX Lease Expiration: June 2015 5. Is the project a relocation of existing facility or a new facility to expand operations? If relocation, give current location. Expansion; expansion will be 185,400 SF new facility next to existing site 6. If an existing Denton business, will project result in abandonment of existing facility? If so, the value of the existing facility will be subtracted from the value of the new facility to arrive at total project value. No, a 12 year lease commitment will be for both the new and existing sites 7. Property Description. - Attach a copy of the legal description detailing property's metes and bounds. Attached - Attach map of project including all roadways, land use and zoning within 500 feet of site. Attached Page 4 of 9 2014 Tax Abatement Policy 8. Current Value. Attach copy of latest property tax statement from the Denton County Central Appraisal District Include both real (land and improvements) and personal property). Attached 9. Increased Value /Estimated Total Cost of Project. Structures $12,000,00 Site $11,600,000 0 Development Personal Property $4,000,000 Other $2,400,000 Improvements 10 Indicate percent of tax abatement and number of years requested. Percent Requested 100% Years Requested 8 Years List any other financial incentives this project will request /receive Estimated Freeport Exemption $ Estimated Electric Utility Industrial Development Rider $ Estimated Water /Wastewater Infrastructure Assistance $ Chapter 380 Incentive, requesting assistance with infrastructure improvements. Service road will need improvements to insure adequate egress and ingress to property, awaiting cost estimates. 11 Give a brief description of the activities to be performed at this location, including a description of products to be produced and /or services to be provided. Items Produced: Gas cutting torches, gas control regulators, medical gas control regulators and manifolds; plasma cutting CNC controllers; mig welding guns, plasma cutting /welding torches, welding & cutting consumable goods, various other welding and cutting products Services Provided: Customer service (domestic and international); product technical support (domestic and international); engineering design, research & development, and new product introduction; warranty repair service; product (brand) management; global material sourcing and demand planning Page 5 of 9 2014 Tax Abatement Policy Product Training: Product training to both employees and customers via on -site training facilities on a regular basis 12 Describe any off -site infrastructure requirements: • Water • Wastewater • Streets: Airport Road; turn lanes for both East and West traffic and modify both egress and ingress points to site. There will also be TxDot Improvements TBD. • Drainage • Other 13. Project Operation Phase. Provide employment information for the number of years incentive is requested. Employment Information Existing Operation (if applicable) At Project Start Date (mo /yr) 7/2015 At Term of Incentive 6/2023 A. Total number of permanent, full -time jobs 492 492 619 B. Employees transferred from outside Denton - - - C. Net permanent full -time jobs (A. minus B.) 492 492 619 E. Total annual payroll for all permanent, full- time jobs (A.) $27,679,142.40 $27,679,142.40 $35,945,769.60 Page 6 of 9 2014 Tax Abatement Policy F. Types of jobs created. List the job titles and number of positions in each category that will be employed at the facility. Provide average wage for each category. Attached — Job Titles, Number of Positions and Average Wage G. Indicate the number of shifts the project will operate Three (3) weekday shifts; Two (2) weekend shifts H. Estimate annual utility usage for project: These are current utility usage numbers which would increase with an addition to the current footprint. Electric 13,077,773 kWh Water 4,833 gpd Wastewater 4,833 gpd Gas 56.28 mcf 14. Describe any other direct benefits to the City of Denton as a result of this project (e.g., sales tax revenue or project elements identified in Tax Abatement Policy, Section III). The direct benefit will be getting this project complete. The tax abatement will mitigate cost to Victor and ultimately reduce their financial commitment. Should the project move forward it would result in over 120 new jobs in the city of Denton and at least a 12 -year commitment from Victor to remain in Denton. 15. Is property zoned appropriately? Yes Current zoning: IC —E Zoning required for proposed project: IC -E Anticipated variances 16. Is property platted? Yes Will replatting be necessary Yes; Two (2) tracts being purchased for new facility. One (1) of the tracts was not platted which is currently in the platting process 17. Discuss any environmental impacts created by the project. A. List any permits for which applicant must apply. Applicant will be required to provide City with copies of all applications for environmental permits upon completion of application(s). NA B. Provide record of compliance to all environmental regulations for the past five years. March 2012 — Non Compliance for total phosphorus in wastewater discharge March 2013 — Non Compliance for exceed limits notice for phosphorus in wastewater discharge April 2013 — Non Compliance exceed limit for phosphorus in wastewater discharge Page 7 of 9 2014 Tax Abatement Policy October 2013 — Process water circumventing sample point May 2014 — Amendment to Industrial/Commercial Wastewater Discharge Permit. TCEQ determined that the total phosphorus discharge was not caused by the pass through and delisted phosphorus from the permit July 2014 — City of Denton issued a Significant Noncompliance (SNQ because of three previous NOV for phosphorus exceedance even though the TCEQ delisted phosphorus from the permit in May 2014 18. Provide specific detail of any businesses /residents that will be displaced and assistance that will be available from the requesting company. NA 19. Provide description of any historically significant area included within the project's area as determined by the Historic preservation Officer. If any, give detail of how the historically significant area will be preserved. NA 20. Justification for Incentive Request: Substantiate and more fully describe the justification for this request. Include the amount of the incentive requested and show how it will contribute to the financial viability of the project. Submit attachments if necessary. In considering this transaction, Victor was really focused on the financial liability they would incur by proceeding. Initial proposals would have had them expanding and ultimately paying a rental rate of $5.73 /PSF, which is a substantial increase from their current obligation of $4.44/PSF. They have agreed in principle to the increase given the synergies and efficiencies that would be gained by moving forward with the process. This agreement is predicated on the fact that tax abatement would keep the cost at or below the $5.73 /PSF. Without the abatement in place, the developer will not be able to move forward with the purchase and construction of the new facility. 21. List additional abatement factors to be considered for this project as outlined on pages 3 and 4 of the Incentive Policy. Page 8 of 9 Occupies building vacant for at least 2 years Donation of materials to public schools X Project creates high - skilled, high - paying jobs Improvements to Downtown Significant relationship with universities Project fortes business park 25% of new jobs filled by Denton residents International or national headquarters 25% local contractors to be utilized Medical manufacturing or research facility X 25% of jobs are knowledge -based Environmentally sustainable practices used Donation of significant public art Renewable Energy generated /stored /utilized Page 8 of 9 2014 Tax Abatement Policy X Community support and involvement: Attach description of community involvement 22. Financial Information: Attach a copy of the latest audited financial statement or, in the case of a new project, a business plan. Colfax Corporation 2014 Annual Report Attached 23. Does the project have an eligible environmentally sustainable or renewable energy component (if so, please identify type and provide a brief description)? NA 24. Applicants seeking LEED certification must complete the Green Building Application for Tax Abatement (Exhibit B of the policy). NA Page 9 of 9 ECONOMIC DEVELOPMENT AGREEMENT WITH VICTOR EQUIPMENT COMPANY This Economic Development Agreement ( "Agreement ") is made and entered into as of the effective date provided for below, by MOHR DENTON, LLC, a Texas Limited Liability Company, located at 14643 Dallas Pkwy., Suite 1000, Dallas, Texas 75254 ( "Owner "), VICTOR EQUIPMENT COMPANY, a Delaware corporation located at 2800 Airport Road, Denton, Texas 76201 ( "Tenant Grantee ")(Owner and Tenant Grantee are collectively referred to as the "Grantees" herein), and the CITY OF DENTON, a Texas municipal corporation, located at 215 E. McKinney Street, Denton, Texas 76201 (the "City ") for the purposes and considerations stated below: WHEREAS, this Agreement is authorized pursuant to Article III, Section 52 -a of the Texas Constitution and Chapter 380 of the Texas Local Government Code (the "Act ") to promote local economic development and to stimulate business and commercial activity in the City of Denton; and WHEREAS, Owner owns or is under contract to acquire two tracts of land located at 2800 Airport Road, Denton, Texas 76201, which are within the city limits of the City of Denton, Denton County, Texas and is more particularly described in Exhibit "A" attached hereto and incorporated by reference as if set forth at length herein (the "Property "); and WHEREAS, The ESAB Group, Inc., a Delaware Corporation, ( "ESAB ") and Victor Technologies International, Inc., a Delaware Corporation, ( "VTI") are members of the ESAB group of companies under common ownership since 2014; and WHEREAS, Victor Equipment Company, a Delaware Corporation, ( "VEC" or "Tenant Grantee ") is a subsidiary of VTI and is the current leaseholder of the Property; and WHEREAS, VEC, ESAB, and VTI are a group of cooperating companies with varying degrees of shared ownership and are considered a "Related Party" to one another as that term is defined herein; and WHEREAS, Tenant Grantee anticipates entering into a lease on the Property with Owner for a term of at least 12 years; and WHEREAS, Grantees and Related Parties desire to construct a new 185,400 square foot facility and improve an existing facility within the City relocating approximately 100 jobs from an existing facility and create 100 new jobs over a three year period with an estimated Capital investment of approximately $30,000,000.00 ( "Project "); and Economic Development Agreement Page 1 of 20 Victor Equipment Company Mohr Denton, LLC WHEREAS, on or about March 13, 2015, Grantees submitted an application to the City concerning the contemplated use and development of the Property in order to request economic development incentives pursuant to the Act ( "Grant Application "), representing that the Project on the Property would not occur unless incentives are provided; and WHEREAS, the Grant Application was reviewed by the Economic Development Partnership Board ( "EDP board ") in accordance with the City of Denton's Tax Abatement and Incentive Policy on April 15, 2015 and the EDP board found the Project meets the qualifications for tax incentive and recommended approval of the incentive as outlined herein unanimously with a vote of 5 -0; and WHEREAS, the City Council of the City of Denton desires to provide an incentive in the form of a grant to Grantees to develop the Property and hereby finds that the contemplated use and development of the Property, the proposed improvements provided for herein, and the other terms and conditions of this Agreement, will promote economic development, increase employment, and stimulate business and commercial activity within the City of Denton for the benefit of the public and therefore meets the requirements under Chapter 380 of the Texas Local Government Code; and NOW, THEREFORE, the City and Grantees for and in consideration of the Property and the promises contained herein do hereby contract, covenant and agree as follows: I. GRANT CONDITIONS A. Grantees covenant and agree with the City that the City's obligations under this Agreement are subject to the fulfillment of the Grantees' obligations under this Agreement, and Grantees (themselves or through their Related Parties) hereby agree to perform and comply in all material respects to the terms, conditions, and provisions of this Agreement and in all other instruments and agreements between Grantees, Related Parties, and the City with respect to the financial or other incentives provided herein. B. Improvements to the Property shall be made in substantial compliance with the description of the Project as set forth in the Grant Application. "Improvements" are defined as the construction, renovation and equipping of the Property as set forth in the Grant Application, including but not limited to: (1) costs related to the development and improvement of the real estate, including, without limitation, construction costs and design and engineering costs; and (2) tangible personal property located on or at the Property owned or controlled by Grantees or a Related Party, excluding inventory, supplies, and vehicles. The City expressly is not obligated in any way to payment of costs and fees for the Improvements, and is only agreeing to payments as stated herein. The kind and location of the Improvements is more particularly described in the Grant Application. For the construction of Improvements and /or remodeling of existing improvements, Grantees and /or Related Parties shall comply with all applicable City of Economic Development Agreement Page 2 of 20 Victor Equipment Company Mohr Denton, LLC Denton Code of Ordinances, the City's Tax Abatement and Incentive Policy, Texas Department of Transportation Regulations and any other applicable federal, state, and local law. C. Notwithstanding anything contained in this Agreement to the contrary, no grant or payment shall be made to the Tenant Grantee under this Agreement unless and until Owner, Tenant Grantee and /or Related Parties have completed the Improvements to the Property no later than December 31, 2017, subject to force inajeur delays as outlined in Section V.B herein, including but not limited to the new 185,400 square foot building to accommodate the Tenant Grantee which is relocating approximately 100 jobs from an existing facility and expected to create a minimum of 100 new jobs over a three year period with a straight average wage of at least $29.93 per hour, exclusive of health insurance and retirement benefits. Grantees and Related Parties estimate the total investment for the purchase, renovation and development of the Project shall be at least $30 million, of which $12 million shall be the cost to purchase the existing facility. As a grant condition, this capital investment shall generate a minimum increase of the assessed real estate Improvements and business personal property valuation over the existing Base Year Valuation in the amount of $6.5 million. The Denton Central Appraisal District's 2014 Certified Value will establish the "Base Year Valuation" for the assessed value and tangible business personal property (excluding land, inventory, supplies and vehicles) located at 2800 Airport Road. Contract Year No. 1 begins January 1st, following the year ending December 31st, in which a Certificate of Occupancy is issued, and subsequent Contract Years shall be numbered sequentially up to Contract Year No. 7 for the purposes of compliance as described in Section IILB herein. D. No grant or payment shall be made to the Tenant Grantee under this Agreement unless the Tenant Grantee and /or a Related Party maintains at least 85 percent of the existing jobs in any given year of compliance, beginning with the number of existing full time jobs outlined in the Grant Application, 414, plus an additional 100 jobs from a distribution center in Roanoke, which will move operations to the Property, for a total of 514 existing jobs. Moreover, should Tenant Grantee and /or a Related Party employ less than the minimum threshold of 100 new jobs before the end of Contract Year No. 3, or fail to provide an straight average wage of at least $29.93 per hour (for the newly created jobs), excluding health insurance and retirement benefits, for the same period as reflected in Exhibit "B ", the grant payment shall be reduced by the percent decrease of the actual employment or actual wage to the thresholds set within this Agreement. For example, if the number of jobs created equals 90, which is 10% less than the 100 jobs threshold, the grant payment will be reduced by 10 %. Or, if the average wage equals $26.94, which is 10% less than the average wage threshold, the grant payment will be reduced by 10 %. E. Grantees and /or Related Parties shall use good faith efforts to hire qualified residents of the City of Denton to work at the Project. In conjunction with the initial hiring of personnel for the new jobs created, the Grantees and /or Related Parties shall make good faith efforts to offer available existing positions to qualified Denton area residents over non - residents who are similarly qualified as determined by the Tenant Economic Development Agreement Page 3 of 20 Victor Equipment Company Mohr Denton, LLC Grantee consistent with business needs and its commitment to equal opportunity and subject to all applicable local, state and federal employment laws. Moreover, Grantees and /or Related Parties shall use a good faith effort to hire local Denton contractors and suppliers in constructing the Improvements where qualified and available. F. Grantees and /or Related Parties are duly authorized and existing under U.S. law and are in good standing under such laws, and are registered to do business in the State of Texas. G. Payments shall be issued to Victor Equipment Company unless an approved assignment occurs under Section V.M. herein, and in which case payment shall be directed to the entity assigned rights under this Agreement. Said entity would be considered the "Tenant Grantee" as denoted herein. H. The Property is not in an improvement project financed by tax increment bonds. L Neither the Property nor any of the Improvements to the Property are owned or leased by any member of the City Council, nor any member of the City Planning and Zoning Commission. J. This Agreement is subject to rights of holders of outstanding bonds of the City, if any. K. In the event of any conflict between the City of Denton Code of Ordinances and federal, state, or other local regulations, and this Agreement, such ordinances and /or regulations shall control. L. The City shall have the right to terminate the grant if the Grantees or a Related Party do not occupy the Improvements continuously for the term of the grant for the purposes set forth in the Grant Application. In the event of such termination, all Grant payments for future years shall be terminated. M. The City agrees that any job created to be located at the Property or Improvement made to the Property by a Related Party of Grantees will be counted as if made by Grantees for the purposes of this Agreement and the calculation and payment of any Grant payment. The term "Related Party" shall mean any entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Tenant Grantee. N. In accordance with Chapter 2264 of the Texas Government Code, Grantees and /or Related Parties shall not knowingly employ any person for or at the Project who is not lawfully admitted for permanent residence to the United States or who is not authorized under law to be employed in the United States ( "Undocumented Worker "). During the term of this Agreement, Grantees shall notify City of any complaint brought against Grantees alleging that Grantees have knowingly employed Economic Development Agreement Page 4 of 20 Victor Equipment Company Mohr Denton, LLC Undocumented Workers. In the event that Grantees and /or Related Parties are convicted of a violation under federal law, grant payments shall be terminated. II. TERMS OF GRANT A. Subject to the terms and conditions of this Agreement, the City hereby agrees to pay to Tenant Grantee, annually for a period of seven years after January 1 following the first tax assessment after receipt by Tenant Grantee of the certificate of occupancy for the improved Property, an amount equal to (1) Sixty Five Percent (65 %) multiplied by (2) the increase in the City's ad valorem taxes received for the previous year versus those received for the Base Year associated with the Property and Improvements, exclusive of the taxable value of land or any increase in taxable value attributable to land, taxable value of inventory or vehicles (the "Annual Payments "). The Annual Payments shall be paid on or before 60 days after the City's receipt of all ad valorem taxes for the Property for the applicable tax year. The assessed value shall be established using the Denton County Appraisal District appraisal process. The City shall never be obligated to make any payment to the Tenant Grantee from any funds other than the tax revenues generated by the Project. B. The City's obligation to pay the payments provided in this Agreement is subject to the fulfillment of the General Conditions set forth in Article I above. C. Grantees or a Related Party shall have the right to protest and contest any or all appraisals or assessments by the Denton County Appraisal District for the Property, the Improvements or any other tangible personal property owned or controlled by Grantees or a Related Party and located on the Property. All calculations in this Agreement shall be based upon final assessed values after any such protest or contest. If the situation arises that the City or Denton County adjust the assessed value associated with Property or Improvement for which an associated Annual Payment has already been made to Tenant Grantee, and the adjustment is final and all associated protests and contests have been exhausted, then the following will occur: (1) if the result is that using the adjusted assessed value the Annual Payment would have been lesser than what the City actually paid to Tenant Grantee, then Tenant Grantee will repay to the City such excess of the Annual Payment within 60 days after both (i) a refund of the excess property taxes associated with the adjusted assessed value have been paid by the City and (ii) Tenant Grantee has received written notice detailing the calculation of the excess Annual Payment amount from the City; or (2) if the result is that using the adjusted assessment value the Annual Payment would have been greater than what the City actually paid to Tenant Grantee, then the City will pay to Tenant Grantee such shortfall of the Annual Payment within 60 days after the shortfall property taxes associated with the adjusted assessed value have been paid to the City. Economic Development Agreement Page 5 of 20 Victor Equipment Company Mohr Denton, LLC III. RECORDS, AUDITS, AND EVALUATION OF PROJECT A. Grantees shall provide access and authorize inspection of the Property by authorized City employees and allow sufficient inspection of financial information for the limited purpose of insuring that the Improvements are made according to the specifications and conditions of this Agreement. Such inspections shall be in addition to, and not in place of, any inspections required by ordinance for construction of the Improvements and the like. The financial information shall include, without limitation, an inventory listing the kind, number, and location of and the total investment value of all Improvements to the property, including the value of all buildings and other structures and permanent improvements installed, renovated, repaired or located on the Property. B. Tenant Grantee shall deliver to the City before February 28th of each year a Certificate of Compliance utilizing the form attached as Exhibit "C" to begin the year following the first anniversary of annual payment and each year thereafter during the term of this Agreement. Said certificate shall reflect all relevant information from the previous calendar year. The form is subject to revision by the City provided that such revision does not materially change Tenant Grantee's rights or obligations under this Agreement. In the Certificate of Compliance, Tenant Grantee shall warrant to the City that it (and /or its Related Parties) is in full compliance with each of its obligations under this Agreement, including the number of existing jobs and newly created jobs maintained by Tenant Grantee (and /or its Related Parties) for the preceding year period. The City and /or its representative(s), including third - parties contracted by the City, shall have the right to inspect all relevant records of Tenant Grantee as are reasonably necessary to verify compliance with all requirements of this Agreement. Such inspections shall be preceded by at least a one (1) week written notice to Tenant Grantee and shall not unreasonably interfere with Tenant Grantee's business activities. C. The City is not obligated to make any payments under this Agreement if Tenant Grantee fails to timely submit its Certificate of Compliance after receiving written notice of such failure from the City and having the opportunity to cure such deficiency within a three (3) business day period. If the City is unable to confirm Tenant Grantee's compliance for its obligations in any year of the Agreement due to Tenant Grantee not providing proof of compliance within one year from the due date of the Certificate of Compliance, then that year's annual payment will be irrevocably lost. IV. DEFAULT A. Each of the following shall constitute an Event of Default under this Agreement (except that if an Event of Default occurs only with respect to Owner but not Tenant Grantee, then this shall not be considered an Event of Default with respect to Tenant Grantee): Economic Development Agreement Page 6 of 20 Victor Equipment Company Mohr Denton, LLC L Failure of the Tenant Grantee and /or Related Parties to continuously maintain and operate the Improvements on the Property for the seven (7) year term hereof and the Tenant Grantee and /or Related Parties do not cure such failure within thirty (30) days after written notice from the City to the Tenant Grantee describing such failure, or if such failure cannot be cured within such 30- day period in the exercise of all due diligence, then if the Tenant Grantee and /or Related Parties fail to commence such cure within such 30 -day period or fail to continuously thereafter diligently prosecute the cure of such failure. 2. Any warranty, representation or statement made or furnished to the City by or on behalf of Grantees and /or Related Parties, under this Agreement that is false or misleading in any material respect, either now or at the time made or furnished, and Grantees and /or Related Parties, fail to cure same within thirty (30) days after written notice from the City to the Grantees describing the violation, or if such violation cannot be cured within such 30 -day period in the exercise of all due diligence, then if Grantees and /or Related Parties fail to commence such cure within such 30 -day period or fail to continuously thereafter diligently prosecute the cure of such violation, or if Grantees and /or Related Parties learn that any such warranty, representation or statement has become false or misleading at the time that it was made, and Grantees and /or Related Parties fail to provide written notice to the City of the false and misleading nature of such warranty, representation or statement within ten (10) days after confirmed written notice to Grantees and /or Related Parties. 3. The dissolution or termination of Grantees' existence as a going business, Grantees' insolvency, appointment of receiver for any part of the Property, any assignment of all or substantially all of the assets of Grantees for the benefit of creditors of Grantees, any type of creditor workout for Grantees, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantees, unless, in the case of involuntary proceedings, such proceedings are discharged within sixty (60) days after filing. 4. Grantees and /or Related Parties allowing property taxes owed to the City to become delinquent and failing to timely and properly follow the legal procedures for protest and /or contest of such taxes and to cure such failure within thirty (30) days after written notice thereof from the City and or Denton Central Appraisal District. 5. Failure of Grantees and /or Related Parties to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any documents generated or otherwise created attendant to this Agreement or in any way related to this Agreement ( "Related Documents "), or failure of Grantees and /or Related Parties to comply with or to perform any other term, obligation, covenant or condition contained in any other agreement between the City and Grantees and /or Related Parties, fails to cure such failure within thirty (30) days after written notice from the City describing such failure, or if such failure cannot Economic Development Agreement Page 7 of 20 Victor Equipment Company Mohr Denton, LLC be cured within such 30 -day period in the exercise of all due diligence, then if Grantees and /or Related Parties fail to commence such cure within such 30 -day period or fail to continuously thereafter diligently prosecute the cure of such failure. B. If any Event of Default shall occur and Grantees and /or Related Parties fail to cure such default, all commitments of the City under this Agreement, including without limitation, payment of the Annual Payment, shall immediately terminate with respect to the year in which notice of the Event of Default is given and for all future years. Additionally, Grantees and /or Related Parties shall be obligated to repay the City an amount equal to fifty percent (50 %) of all previous payments made by the City under this Agreement to the Grantees and /or Related Parties under any compliance year. If Grantees and /or Related Parties are required to reimburse the City these amounts hereunder, the City shall notify the Grantees and /or Related Parties in writing of the amount to be repaid, and shall direct them to pay such amount directly to the City. All such amounts due hereunder shall be due upon demand by the City and if not paid within thirty (30) days following written demand hereunder, the unpaid amount due hereunder shall bear interest at the rate of 5% per annum after demand until paid. V. GENERAL PROVISIONS A. All improvements to the Property shall be consistent with all applicable federal, state and local law including the Denton Code of Ordinances as well as any other regulations or plans relative to the Property. This Agreement does not constitute a waiver by the City of any development ordinances or conditions. Further, Grantees and /or Related Parties acknowledge that by executing this Agreement, no entitlement or agreements concerning zoning or land use shall arise, either implied or otherwise. B. Grantees and /or Related Parties shall complete construction of all improvements to the Property within the timeframes provided for in this Agreement. Notwithstanding the foregoing, Grantees and /or Related Parties shall have such additional time to complete the Improvements as may be required in the event of force inajeure if Grantees and /or Related Parties are diligently and faithfully pursuing completion of the Improvements. For this purpose, force inajeure shall mean any contingency or cause beyond the reasonable control of Grantees and /or Related Parties, including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, governmental or de facto governmental action (unless caused by acts or omissions of Grantees and /or Related Parties), fires, explosions or floods, strikes, and action of the elements, including without limitation, inappropriate temperature conditions, rainfall or other interfering precipitation or weather. In the event that Grantees and /or Related Parties require additional time due to an event of force inajeure, such additional time shall not exceed 180 days, unless otherwise approved by City Council. Economic Development Agreement Page 8 of 20 Victor Equipment Company Mohr Denton, LLC C. GRANTEES, ESAB, AND VTI SHALL INDEMNIFY, SAVE AND HOLD HARMLESS THE CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS, ATTORNEYS AND EMPLOYEES (COLLECTIVELY, THE "INDEMNITEES ") FROM AND AGAINST: (I) ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY GOVERNMENTAL AUTHORITY DIRECTLY OR INDIRECTLY RELATED, TO A CLAIM, DEMAND, ACTION OR CAUSE OF ACTION, ARISING FROM GRANTEES' AND /OR RELATED PARTIES' PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, IN WHICH THE CITY IS A DISINTERESTED PARTY; (II) ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION WHICH DIRECTLY OR INDIRECTLY CONTESTS OR CHALLENGES THE LEGAL AUTHORITY OF THE CITY OR GRANTEES, ESAB, AND VTI TO ENTER INTO THIS AGREEMENT; AND (III) ANY AND ALL LIABILITIES, LOSSES, COSTS OR EXPENSES (INCLUDING ATTORNEY'S FEES AND DISBURSEMENTS) THAT ANY INDEMNITEES SUFFER OR INCURS AS A RESULT OF ANY OF THE FOREGOING; PROVIDED, HOWEVER, THAT GRANTEES AND /OR RELATED PARTIES SHALL HAVE NO OBLIGATION UNDER THIS PARAGRAPH TO THE CITY WITH RESPECT TO ANY OF THE FOREGOING ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY OR THE BREACH BY THE CITY OF THIS AGREEMENT. IF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS ASSERTED AGAINST ANY INDEMNITEE, SUCH INDEMNITEE SHALL PROMPTLY NOTIFY GRANTEES, BUT THE FAILURE TO SO PROMPTLY NOTIFY GRANTEES SHALL NOT AFFECT GRANTEES' AND /OR RELATED PARTIES' OBLIGATIONS UNDER THIS PARAGRAPH UNLESS SUCH FAILURE MATERIALLY PREJUDICES GRANTEES' AND /OR RELATED PARTIES' RIGHT TO PARTICIPATE IN THE CONTEST OF SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION, AS HEREINAFTER PROVIDED. IF REQUESTED BY GRANTEES AND /OR RELATED PARTIES, IN WRITING, SO LONG AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, SUCH INDEMNITEE SHALL IN GOOD FAITH CONTEST THE VALIDITY, APPLICABILITY AND AMOUNT OF SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION AND SHALL PERMIT GRANTEES AND /OR RELATED PARTIES, TO PARTICIPATE IN SUCH CONTEST. ANY INDEMNITEE THAT PROPOSES TO SETTLE OR COMPROMISE ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION OR PROCEEDING FOR WHICH GRANTEES, ESAB, AND VTI, MAY BE LIABLE FOR PAYMENT OF INDEMNITY HEREUNDER SHALL GIVE GRANTEES WRITTEN NOTICE OF THE TERMS OF SUCH PROPOSED SETTLEMENT OR COMPROMISE REASONABLY IN ADVANCE OF SETTLING OR COMPROMISING SUCH CLAIM OR PROCEEDING AND SHALL OBTAIN GRANTEES' AND /OR RELATED PARTIES' WRITTEN CONCURRENCE THERETO. D. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless Economic Development Agreement Page 9 of 20 Victor Equipment Company Mohr Denton, LLC given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. E. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. Venue for any action arising under this Agreement shall lie in Denton County, Texas. F. The signatories hereto shall be subject to all ordinances of the City, whether now existing or in the future arising. This Agreement shall confer no vested rights, as defined and referenced in Chapter 245 of the Texas Local Government Code, as amended, on the Property or Grantees and /or Related Parties. G. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto, including their respective successors and assigns and upon all future owners of the Property. The City warrants and represents that the individual executing this Agreement on behalf of the City has full authority to execute this Agreement and bind the City to the same. Grantees warrant and represent that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind Grantees to same. H. In the event any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, the Agreement shall, to the extent reasonably possible, remain in force as to the balance of its provisions as if such invalid provision were not a part hereof. L All notices required to be given under this Agreement shall be given in writing and shall be effective when actually delivered or when deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the addresses shown below. Notices may be given via facsimile at the numbers below. Any party may change its address or fax no. for notices under this Agreement by giving written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, each party agrees to keep the other informed at all times of its current address and fax no. Economic Development Agreement Page 10 of 20 Victor Equipment Company Mohr Denton, LLC GRANTEES: OWNER Mohr Denton, LLC Derith Jarvis, Managing Partner 14643 Dallas Pkwy. Suite 1000 Dallas, Texas 75254 TENANT GRANTEE Victor Technologies International, Inc. Larry Power, Vice President Global integrated Supply Chain 2800 Airport Road Denton, TX 76207 With a copy to: Victor Technologies International, Inc. Attn: General Counsel 420 National Business Parkway, 5th Floor Annapolis Junction, MD 20701 CITY: City Manager City of Denton 215 E. McKinney Denton, Texas 76201 J. Time is of the essence in the performance of this Agreement. K. Grantees represent that this Agreement is entered into by Grantees pursuant to authority granted by its Board of Directors to, in the case of Owner, its Managing Director and, in the case of Tenant Grantee, its specified officer. A copy of a corporate resolution of Grantees, authorizing this Agreement is attached hereto and made a part hereof as Exhibit "D ". L. This Agreement is authorized by the City Council of the City at its meeting on the day of , 2015, authorizing the City Manager to execute this Agreement on behalf of the City. A copy of the City Council's ordinance authorizing this Agreement is attached hereto and made a part hereof as Exhibit "E ". Economic Development Agreement Page 11 of 20 Victor Equipment Company Mohr Denton, LLC M. Except as provided herein, this Agreement may not be assigned in whole or in part without the prior written approval of the parties. This Agreement may be assigned in whole by Grantees, without the prior written approval of the City, for the limited purpose of merging or otherwise transferring assets to a Related Party. Partial assignments are permitted without the prior written consent of the City so long as the assignment occurs after the completion of the Improvements and the partial assignment is to an entity having fee simple title to the portion of the Property corresponding to the partial assignment. However, no assignment, whether in whole or in part will not take effect until City is provided written notice of such assignment and a copy of same. N. Grantees hereby agree that any land or property it donates to the City for any public improvements is roughly proportional to the need for such land and Owner hereby waives any claim therefore that it may have in regards to such improvement. Grantees further acknowledge and agree that all prerequisites to such a determination of rough proportionality have been met, and that any costs incurred relative to said donation are related both in nature and extent to the impact of the Project. Both Grantees, and the City further agree to waive and release all claims one may have against the other related to any and all rough proportionality and individual determination requirements mandated by the United States Supreme Court in Dolan v. City of Tigard, 512 U.S. 374 (1994), and its progeny, as well as any other requirements of a nexus between development conditions and the projected impact of this Project. O. All payments by the City to Grantees and /or Related Parties under this Agreement are subject to City's appropriation of funds for such payments in the budget year for which they are made. The payments to be made to Grantees and /or Related Parties, if paid, shall be made solely from annual appropriations from the general funds of the City or from such other funds of the City as may be legally set aside for the implementation of Article III, Section 52a of the Texas Constitution or Chapter 380 of the Local Government Code or any other economic development or financing program authorized by statute and the Texas Constitution, subject to any applicable limitations or procedural requirements. In the event the City does not appropriate funds in any fiscal year for payments due to Tenant Grantee, under this Agreement, City shall not be liable to Grantees and /or Related Parties for such payments, and Grantees and /or Related Parties shall have the right but not the obligation to rescind this Agreement; provided however, Grantees and /or Related Parties shall not be obligated to refund any payments theretofore made to Grantees and /or Related Parties pursuant to this Agreement, as the payment by City of such payments shall be proof that the City duly appropriated the funds for the budget year in which such payments were made. To the extent there is a conflict between this paragraph and any other language or covenant in this Agreement, this paragraph shall control. P. It is agreed by the parties to this Agreement that the terms of this Agreement are not intended to and shall not be deemed to create any partnership or joint venture among parties. The City, its past and future officers, elected officials, employees, and agents expressly do not assume any responsibilities or liabilities to any third party in Economic Development Agreement Page 12 of 20 Victor Equipment Company Mohr Denton, LLC connection with the Project or the design, construction, or operation of any portion of the Improvements. Q. Any party hereto may request an estoppel certificate from another 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 Victor Technologies International, Inc., 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 remaining Term of this Agreement, the levels and remaining Term of the Annual Payments in effect, and such other matters reasonably requested by the party(ies) to receive the certificates. R. Grantees, 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 ordinances, resolutions, or City Council actions authorizing same and Grantees and /or Related Parties shall be entitled to intervene in said litigation. In no way is this provision meant to waive any defenses or immunity that the City may assert therein. S. This Agreement shall be effective as of the last date of signature of a party hereto as evidenced by the acknowledgment date for such signature (the "Effective Date "). Economic Development Agreement Page 13 of 20 Victor Equipment Company Mohr Denton, LLC ATTEST: JENNIFER WALTERS CITY SECRETARY I APPROVED AS TO FORM: ANITA BURGESS CITY ATTORNEY IRA CITY OF DENTON, TEXAS I:• GEORGE C. CAMPBELL CITY MANAGER VICTOR EQUIPMENT COMPANY a Delaware Corporation By Its: MOHR DENTON, LLC a Texas Limited Liability Company By: Its: Economic Development Agreement Page 14 of 20 Victor Equipment Company Mohr Denton, LLC ACKNOWLEDGMENTS STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Agreement was executed before me on the day of , 2015 by George C. Campbell, City Manager of the City of Denton, Texas, a Texas municipal corporation, on behalf of said Municipal Corporation. Name: Notary Public in and for the State of Texas STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Program Agreement was executed before me on the day of , 2015 by of Victor Equipment Company, on behalf of said corporation. Name: Notary Public in and for the State of Texas STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Program Agreement was executed before me on the day of , 2015 by of Mohr Denton, LLC, on behalf of said company. Name: Notary Public in and for the State of Texas Economic Development Agreement Page 15 of 20 Victor Equipment Company Mohr Denton, LLC EXHIBIT A (PROPERTY LEGAL DESCRIPTION) Economic Development Agreement Page 16 of 20 Victor Equipment Company Mohr Denton, LLC EXHIBIT B (JOBS AND WAGES) Economic Development Agreement Page 17 of 20 Victor Equipment Company Mohr Denton, LLC EXHIBIT C (CERTIFICATE OF COMPLIANCE FORM) Economic Development Agreement Page 18 of 20 Victor Equipment Company Mohr Denton, LLC EXHIBIT D (CORPORATE RESOLUTION FOR AUTHORITY) Economic Development Agreement Page 19 of 20 Victor Equipment Company Mohr Denton, LLC EXHIBIT E (ORDINANCE AUTHORIZING AGREEMENT) Economic Development Agreement Page 20 of 20 Victor Equipment Company Mohr Denton, LLC CERTIFICATE OF COMPLIANCE Company: VICTOR EQUIPMENT COMPANY Reporting Year: January 1 — December 31, 20 Contract Year No. of 7 L Investment 1.1 Section I.C. of the Economic Development Agreement indicates that the grant is conditioned on the capital investment to generate a minimum increase of the assessed real estate Improvements and business personal property valuation over the existing Base Year Valuation in the amount of $6.5 million, which is a. The Grantees have invested $ in real estate Improvements for the Project on the Property for the reporting year ending December 31, 20 b. The increase in assessed valuation of the real estate Improvements for the year ending December 31, 20 over the Base Year Valuation is IL Employment 2.1 Section I.D. of the Economic Development Agreement provides that the Company shall retain at least 85 percent of the existing jobs as indicated on Exhibit B of the Agreement. Additionally, the Company shall create 100 new full -time jobs by December 31sT of the Contract Year No. 3. The job creation schedule is as follows: a. Retain at least 436 jobs and create 78 new full time jobs by December 311T of Contract Year No. 1; b. Retain at least 503 jobs and create 16 new full time jobs by December 31sT of Contract Year No. 2; c. Retain at least 516 jobs and create 6 new full time jobs by December 31sT of Contract Year No. 3; d. Retain at least 521 jobs by December 31sT of Contract Year No. 4; e. Retain at least 521 jobs by December 31sT of Contract Year No. 5; f. Retain at least 521 jobs by December 31sT of Contract Year No. 6; and g. Retain at least 521 jobs by December 31sT of Contract Year No. 7. 2.2 Number of existing jobs retained as of December 31, 20 2.3 Number of new jobs created and filled as of December 31, 20 2.4 As of December 31, 20 , did the number of existing jobs retained or new jobs created fall below the numbers required under Sec. I.D. of the Agreement? ❑ YES ❑ NO Certificate of Compliance Page 1 of 3 2.5 Section I.D. of the Economic Development Agreement requires that the average hourly wage, excluding health insurance and retirement benefits, of the new jobs created to be at least $29.93 per hour. The average hourly wage, excluding health insurance and retirement benefits, of the new jobs created during the year ending December 31, 20 is: 2.6 Did the average hourly wage, excluding health insurance and retirement benefits, of the new jobs created during the year ending December 31, 20 equal or exceed the requirements in Section I.D. of the Agreement? ❑ YES ❑ NO 2.7 Section I.E. of the Economic Development Agreement requires the Company to use good faith efforts to hire qualified residents of the City of Denton to work at the Project. As part of this requirement, the Company must make a good faith effort to offer both available existing jobs and newly created jobs to qualified Denton residents, as well as to hire Denton contractors and suppliers in construction. 2.8 Did the Company comply with the recruiting requirements in Section I.E. of the Agreement in regards to offering available jobs to Denton residents during the year ending December 31, 20 ? ❑ YES ❑ NO 2.9 Did the Company comply with the recruiting requirements in Section I.E. of the Agreement in regards to hiring Denton contractors and suppliers in construction during the year ending December 31, 20 ? ❑ YES ❑ NO III. Additional Covenants 3.1 Section I.L. of the Economic Development Agreement requires the Company to occupy the Improvements continuously for the Agreement's term. Did the Company comply with the occupancy requirement of Section I.I. of the Agreement during the year ending December 31, 20 ? ❑ YES ❑ NO 3.2 Did the Company timely submit this Certificate of Compliance as required under Section III.B of the Economic Development Agreement during the year ending December 31, 20 ? ❑ YES ❑ NO 3.3 Did the Company comply with the other provisions of the Agreement during the year ending December 31, 20 ? ❑ YES ❑ NO Certificate of Compliance Page 2 of 3 IV. Payment 4.1 The Economic Development Agreement provides annual Chapter 380 payments for up to seven years based on conditions being met. For years one through seven, the Agreement provides for annual Chapter 380 payments equal to 65% of the increase in the City's ad valorem taxes received from the Base Year, excluding the value of land, inventory or vehicles. 4.2 The City property taxes paid for January 1, 20 valuation are: Real Property Business Personal Property 4.3 The amount of Chapter 380 payment requested: 4.4 Please attach the most recent Property Tax Notice. I, the authorized representative for Victor Technologies International, Inc., hereby certify that the above information is correct and accurate pursuant to the terms of the Agreement. I further certify that the Company has fully complied with the Chapter 380 Economic Development Agreement during the year ending December 31, 20 , including compliance with the City of Denton Code of Ordinances, Texas Department of Public Safety Regulations, and other applicable federal, state, or local law. VICTOR TECHNOLOGIES INTERNATIONAL, INC. Signature: Printed Name: Title: Date: MOHR DENTON, LLC (ONLY AS TO SEC. I INVESTMENT) Signature: Printed Name: Title: Date: Certificate of Compliance Page 3 of 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -647, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: August 18, 2015 SUBJECT Receive a report; hold a discussion, and give staff direction regarding the 2015 -16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. BACKGROUND The FY 2015 -16 City Manager's Proposed Budget was submitted to the Council on July 31, 2015. Staff provided the City Council with a comprehensive overview of the proposed budget at a Budget Work Session on August 6, 2015. In addition, the City Council held a work session on the proposed budget on August 11, 2015. During these meetings, the City Council asked a number of questions and requested a variety of information concerning the proposed budget. The purpose of this agenda item is to provide the City Council with answers to these discussions regarding the proposed budget and allow additional opportunity for questions and dialogue. In response to these requests, staff has prepared memorandum that summarizes the requests we received and the responses that we have been able to compile. This memorandum will be send under separate cover to the City Council prior to the August 18, 2015 work session. The purpose of this agenda item is to provide the City Council with an additional opportunity for questions and dialogue. Below is the schedule we will follow to adopt the budget and tax rate: August 18 1st Public Hearing on Tax Rate September 1 2nd Public Hearing on Tax Rate Public Hearing on Proposed Budget September 15 City Council Adopts Budget and Tax Rate I look forward to discussing the budget materials in detail with you. If you have any questions, or need additional information, please let me know. Respectfully submitted: City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -647, Version: 1 Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 2 Printed on 8/13/2015 h rvvm d by I cx:ls i''I MEMORANDUM DATE: August 18, 2015 TO: Honorable Mayor and Members of the City Council FROM: Chuck Springer, Director of Finance SUBJECT: City Council Budget Workshop Questions and Responses Information regarding the FY 2015 -16 Proposed Budget and Five Year Forecast was presented to the City Council on August 6th. Below is a summary of the questions and requests, from the City Council as I understand them, and the responses compiled to date. For the items that require further research, we will provide additional information at a future City Council meeting. 1. Please explain whether or not Hotel Occupancy Taxes can be utilized to fund the Kiwanis fireworks show. According to an April 2012 article by the Texas Municipal League (Attachment 1), a fireworks show is an event that does not meet the "two -part test" in determining compliance with the Hotel Occupancy Tax statute. As such, the City's General Fund has provided $20,000 for this event since 2004 and provided $40,000 in FY 2014 -15 after receiving a request from the Kiwanis organization. In order to make this increase permanent, staff has requested an additional $20,000 as a supplemental package in the General Fund. 2. Please provide an update on the Neighborhood Empowerment Grant program. The Neighborhood Empowerment Grant program is managed within the Planning and Development Department and is budgeted annually at $50,000. Five programs have been completed in the current fiscal year, and two additional projects are pending. The total anticipated funding for these seven projects is $42,437. Therefore, $7,563 remains for this program year that may be paid to qualified neighborhood organizations or groups for neighborhood projects. A description of this program is included as Attachment 2. 3. Please provide options for expanding funding for economic development purposes, including the possibility of creating an Economic Development Fund. The City Council passed an ordinance on September 17, 2013 establishing the Downtown Reinvestment Fund which commits $100,000 annually of mixed beverage taxes from the General Fund. The purpose of this fund is to account for "grants" provided to downtown businesses in accordance with the City's Downtown Reinvestment Grant Program. The City Council could amend this ordinance to increase and /or expand the purpose to a City- Question and Answer Memorandum August 18, 2015 Page 2 of 6 wide Economic Development Fund, or setup a new fund through adoption of an ordinance. On June 16, 2015, staff provided the City Council an update on the preliminary General Fund financial forecast. In conjunction with that update, staff provided the Council with the following estimate of funds related to expiring incentives over the five year period: FY 2015 -16 — $ 76,480 FY 2016 -17 — $107,200 FY 2017 -18 — $107,200 FY 2018 -19 — $107,200 FY 2019 -20 — $459,010 Total — $857,090 The FY 2015 -16 Proposed Budget and 5 -Year Forecast for the General Fund currently reflect these expiring incentives as revenues in the year following their expiration. Alternatively, these funds could be redirected to an Economic Development Fund. However, this will lower revenues available to the General Fund. 4. Please provide details on the additional 5 full time equivalents (FTEs) recommended for Street Maintenance. The Street Department does not currently have enough staff to keep up with the demand of citizen requests along with other day to day activities and projects. Implementing the proposed maintenance crew to handle potholes, crack seal, mud jacking /panel lifting, and other miscellaneous activities on a permanent basis will allow existing crews to complete projects in a timely manner, as well as, provide better service and quicker response to our citizen requests. 5. Please provide information on UNT's matching funds for the South by Southwest (SXSW) trade show and if the City's share could be funded from Hotel Occupancy Taxes. Staff responses will be provided for the September 1st Council meeting. 6. Please schedule a work session and invite DCTA to make a presentation regarding their funding sources and the issue of bus shelters. A work session discussion is currently scheduled for September 1, 2015 to discuss this operation. A staff representative from DCTA will make this presentation. Question and Answer Memorandum August 18, 2015 Page 3 of 6 7. Please provide an update regarding the Downtown internet project. Melissa Kraft, Chief Technology Officer, is currently discussing Downtown internet service options with four providers. Preliminary cost proposals from these providers are anticipated to be available in September. 8. Please provide a return on investment analysis for the Denton Community Market's relocation to the Exposition Street property. In addition, please provide information regarding vendor lease revenue received by the Denton Community Market. The requested cost to renovate and upgrade the Exposition parking lot is $671,200 ($403,200 for parking lot renovations and $268,000 for Community Market requested upgrades). The renovation includes becoming more ADA friendly, as well as creating additional parking capacity. Currently, the Denton Community Market has an annual lease expense of $10.00 per year with Denton County. The estimated annual vendor fee revenue for the Denton Community Market is approximately $48,000. This includes an annual vendor fee of $90.00 per vendor (130 vendors), and a Saturday vendor fee of $15.00 per day for each Saturday the vendors participate (an average of 70 vendors per Saturday participated during an 8 month time - frame). The Denton Community Market staff reported an estimate of prior year gross sales that ranged from $380,000 to $420,000. This sales estimate translates into Sales Tax revenues of approximately $5,700 to $6,300 for the City. Based upon the Denton Community Market requested upgrades, it would require a long -term investment before the site generated enough sales tax revenues to recoup the expense. 9. Please schedule a work session to discuss the prioritization of street reconstruction projects. A work session discussion will be scheduled in October 2015 to discuss street reconstruction projects. 10. Please provide information regarding Downtown drainage (Actual versus Fully Developed Floodplain). Staff responses will be provided for the September 1st Council meeting. 11. Please provide an update on the state of the Planning Department along with related recommendations for future improvements. The Planning Department recommendations for improvements began on June 30, 2015 with an organizational assessment of the department. A second presentation occurred on Question and Answer Memorandum August 18, 2015 Page 4 of 6 August 11, 2015 which focused on current and future office space needs. The next phase of recommendations will cover process improvements at a future date to be determined. 12. Please provide the annual General Fund cost related to the compensation package proposed in the budget. The estimated annual impact of the proposed compensation package for General Fund employees, including public safety, is $2,065,136. The impact to the FY 2015 -16 budget is approximately half of this cost ($1,032,568) due to the mid -year timing of salary adjustments. 13. Please provide the personnel costs associated with the proposed additional 21.67 full time equivalents (FTEs) in the General Fund. The FY 2015 -16 Proposed Budget includes $1,716,102 in salary and benefits for the additional 21.67 FTEs that are proposed in the General Fund. 14. Please provide a breakdown of the Economic Development Department's proposed budget including a summary of the economic development incentive agreement payments and operational costs. The total FY 2015 -16 proposed budget for Economic Development is $3,244,853. This amount is broken down as follows: Operating expenses, including personnel - $1,124,546 380 Agreements (Property Tax) - $ 117,465 380 Agreements (Sales Tax) - $2,002,842 Total - $3,244,853 15. Please schedule a work session regarding the landfill mining operation at Solid Waste. A work session discussion has been tentatively scheduled for October 20, 2015 to discuss this operation. 16. Please provide information regarding the funding of a Homelessness Coordinator in partnership with the Homeless Coalition members. Community Development is in discussions with three nonprofit organizations interested in assisting with a Homelessness Coordinator position. These organizations are currently holding discussions with their staff and board members and additional information will be provided to City Council as it becomes available. Question and Answer Memorandum August 18, 2015 Page 5 of 6 17. Please schedule a presentation to City Council on the Energy Cost Adjustment (ECA) rate related to Denton Municipal Electric (DME). This presentation has been tentatively scheduled for August 18, 2015 Council meeting in a closed session. 18. Please schedule a presentation to City Council on the agreement between the City of Denton and the Chamber of Commerce for Economic Development activities. A work session discussion is currently scheduled for September 1, 2015 to discuss the Economic Development agreement between the City and the Chamber of Commerce. 19. Please provide a cost comparison of the proposed 3% merit increase versus a 1.7% increase for non civil service personnel in the General Fund. In the General Fund, the non civil service personnel costs account for 47% of salary expenditures. Reducing the compensation package for non civil service to an average merit rate of 1.7% from the proposed 3% would lower the cost for FY 2015 -16 by $208,000. The annual impact of this change would be approximately $416,000. The difference is due to the mid -year timing of salary adjustments that occur based on each employee's anniversary date. Compensation for positions in the City is organized by pay (market) bands. The pay bands identify a minimum, a midpoint, and a maximum pay for each position classification in the City. The midpoint represents an estimate of the average wage for an equivalent position in the marketplace. Due to several factors, a number of employees within the City continue to receive compensation below the marketplace average. Merit based increases, will assist in moving these employees compensation towards the midpoint of their pay bands over time. The City of Denton must remain competitive within the North Texas marketplace in order for the City of Denton to attract and retain high quality employees. The proposed 3% merit increase is needed for the City to remain competitive in the marketplace and to reward employees for their performance. 20. Please provide the cost of the General Fund compensation package increases for the prior two years. The estimated annual impact of the compensation package for FY 2013 -14 was $1,884,000 and for FY 2014 -15 is $1,946,000. This includes both civil service and non civil service personnel in the General Fund. Question and Answer Memorandum August 18, 2015 Page 6 of 6 21. Please provide information on the timeliness of merit based increases and the financial impact of late reviews. The City tracks performance reviews on a monthly basis and notifies all supervisors of overdue reviews. As of July 1, 2015, there were only 10 overdue reviews out of 777 employees in the General Fund. The majority of reviews were less than one month overdue, and there are no reviews due from the prior fiscal year. Employees receive their merit increases retroactively to their anniversary date, and as such, there is no adverse financial impact for late performance reviews. 22. Please provide additional information on the funding for the installation of the Little "d" bike racks in downtown. Staff responses will be provided for the September 1st Council meeting. 23. Please provide information on short term and long term cross walk options on McKinney Street at City Hall. Engineering has completed a preliminary design to install a mid -block crossing at Oakland and McKinney to facilitate safe pedestrian crossing. This design and any short term options will be provided to the Mobility Committee upon completion of the final design. Recommendations from the Mobility Committee will be presented to City Council for consideration. 24. Please provide the August 6th Budget Presentation slides related to the three options identified for Council Priority funding. Also, please provide the presentation slides related to the proposed one time expenditures for FY 2014 -15 Please see Attachment 3, which are select slides from the August 6, 2015 Budget Presentation regarding Council Priority funding and recommended one time expenditures for FY 2014 -15. 25. Please provide a five year history of the City's General Fund balance. Projected Actual Actual Actual Actual Sep 30, 2015 Sep 30, 2014 Sep 30, 2013 Sep 30, 2012 Sep 30, 2011 Ending Balance $26,195,242 $25,838,282 $25,755,178 $25,836,080 $24,424,003 % of Total Expenditures 25.4% 26.4% 27.7% 29.6% 27.1% Attachment 1 By Bennett Sandlin parts! Cities frequently remember to meet one element of TML Executive Director the test, but then forget the other part entirely. This article will succinctly describe the two -part test, and then describe some common situations to which we can apply the test. n the grand scheme of things, city hotel occupancy taxes account for just a small amount of city revenue. Property taxes and sales taxes are far more important to most cities. Why does it seem, then, that hotel taxes generate so much confusion and controversy? The answer is this: hotel taxes, unlike most other taxes, are levied on a specific category of businesses — hotels. As a result, these businesses tend to pay close attention to how cities expend these funds. Spend city sales taxes in a contro- versial way, and no particular category of business feels singled out enough to raise a fuss. Perceived misuses of hotel taxes, on the other hand, are a different story. Fortunately, it's very easy for a city official to remember how to legally spend hotel taxes. A city simply needs to remind itself to always follow the "two -part test." The key element of a two -part test is— surprise —that it has two 48 TEXAS TO W N & C I T Y • APRIL 2012 Part 1: Heads in Beds The first element of the two -part test is this: Every expen- diture of hotel taxes must put "heads in beds." What this means is that every funded project must attract overnight tourists to the city's hotels and motels, thus promoting the city's hotel industry. For example, how about a weekend -long arts and crafts show? There's a very good chance that out -of -town guests might come to visit such an event, so expenditure of hotel tax money on that event would likely qualify: On the other hand, how about a quilting bee at a local nursing home? While a worthy cause, the quilting bee is unlikely to attract overnight tourists and, therefore, prob- ably wouldn't qualify to receive hotel tax funds. Part 2: The Nine Categories Once a project has cleared the first part of the test, it's time for —you guessed it —the second part of the test. Here it is: every expenditure of hotel taxes must also fit into one of nine statutorily authorized categories. These are the nine categories: (1) convention and visitor centers; (2) conven- tion registration; (3) advertising the city; (4) promotion of the arts; (5) historical restoration and preservation; (6) sporting events in a county under one million in popula- tion; (7) enhancing or upgrading existing sports facilities or sports fields (only in certain cities); (8) tourist transporta- tion systems; and (9) signage directing the public to sights and attractions that are visited frequently by hotel guests in the city. Thus, even if an event puts heads in beds, it cannot receive hotel tax money unless it also fits into one of the nine categories. For instance, what about a livestock auction that will attract attendees from surrounding counties? While that event is likely to attract overnight tourists, it doesn't fit neatly into one of the nine categories. Therefore, it's likely not a valid recipient of hotel tax money. It's not enough to meet one of the two prongs of the two -part test. A city must meet both! The following are some real -life examples that have been the focus of inquiries received by the TML Legal Department. Attachment 1 Sign of the Times? Another frequent question concerns highway signs promoting the city. May a city fund a billboard touting the city's attractions, restaurants, and hotels? Let's put it to the two -part test. Heads in beds? Well, why not? If a billboard encourages motorists to stop in town, those motorists might stay the night, whereas without the sign they would have driven on to the next city. This is exactly what the statute intends. The nine categories? How about advertising? Prior to 2009, a convincing argument could be made that because a billboard literally advertises the city it refers to, it would fit within the advertising category. All doubt was erased in 2009, when the Texas Legislature added the ninth category— signage directing the public to sights and attractions. Conclusion — travel signs are a perfect fit for hotel occupancy tax expenditures. Chambers of Commerce? Cities frequently wonder if they can fund the local chamber of commerce using hotel tax money. Do chambers put heads in beds? Maybe, maybe not. Chambers of commerce are typically charged with promoting economic develop- ment, not tourism. Even assuming a chamber does promote tourism, though, how about the nine categories? Funding a chamber doesn't, in itself, fall into any of the nine categories. Fortunately, there is an easy solution. The laws governing hotel tax expenditures permit the city to delegate expen- diture of hotel tax money to another entity, typically a chamber or convention and visitor bureau. As long as the chamber spends the money on projects that otherwise meet the two -part test mentioned above, it's fine to delegate some funds to them. There must be a written contract laying out the duties of the chamber, though. Also, the chamber must keep the hotel funds in an account separate from its general operating fund. Arts Organizations City arts organizations are a common trouble area. It seems that every arts council in the state knows that promotion of the arts is one of the nine categories on which city hotel taxes may be expended. Cities know this because these arts groups frequently come asking for the money. The thing to remember about arts groups is this: Direct funding of the organization's operations does nothing in and of itself to put "heads in beds." Put another way, funding the operating budget of an arts council meets the second part of the test (promotion of the arts) but not necessarily the first. The solution? The city should encourage the group to seek funding only for its festivals and shows that do, in fact, attract tourists to the city. By limiting the expenditure to such events, the city meets both parts of the test. What Else? There are numerous other technical details about how to legally expend hotel tax funds. In truth, by simply learning and remembering the two -part test, city officials are 99 percent of the way toward full compliance with hotel tax laws. City officials with questions about the hotel occupancy tax should call the TML Legal Department at 512- 231 -7400. * CORP. THE COMPLETE SERVICE LAB W ' Qunlisy Mnlydwl d Envimmenrnl Service Sinn !63 Employee -owned Ana -Lab Corporation is one of the country's leading environmental testing labs serving clients in Texas and nationwide. ANA -LAB CORPORATION P. 0. Box 9000 - Kilgore, Texas 75663 2600 Dudley Road 903 - 984 -0551 - Fax: 903 - 984 -5914 www.ana- lab.com - Email: corp @ana- lab.com MEMBER f `ey • u ACCIyEDITEO BBg 7104704201 REGIONAL OFFICES Amarillo, TX Houston, TX Phone /Fax 806 - 355 -3556 Phone /Fax 281- 333 -9414 Email: panhandle @ana- lab.com Email: gulfcoast @ana- lab.com Dallas, TX Norman, OK Phone /Fax 972- 837 -9412 Phone /Fax 405 - 590 -2533 Email: northtex @ana- lab.com Email: oklahoma @ana- lab.com Austin, TX Shreveport, LA Phone /Fax 512 -821 -0045 Phone /Fax 318 -219 -9300 Email: centex @ana- lab.com Email: arkla @ana- iab.com Brownsville, TX Phone /Fax 956 -831 -6437 Email: rgvtex @ana- lab.com APRIL 2 0 1 2 - T E X A S T 0 W N & C I T Y 49 Attachment 2 The Neighborhood Empowerment Program (NEP) provides matching grant funds to qualified organizations or groups for projects which promote long term, public benefit to neighborhoods, and to citizens of Denton. Projects are funded based on their ability to: • Improve the appearance and promote maintenance and enhancement of the neighborhood which will increase the property value; • Establish community pride by involving residents more directly in all phases of the neighborhood development; • Improve public safety by establishing traffic control devices, monuments and other improvements; and • Improve public health by preserving and enhancing the environment to promote the public health, welfare and safety. This matching grant consists of four broad categories as described below: ■ Physical improvements to neighborhood entryways, perimeter areas, street borders and medians, parks, playgrounds, tot lots, and other amenity areas. Such improvements may include landscaping, tree plantings, signage, equipment, decorative structures, and similar beautification or enhancement projects. Physical improvement Projects must be performed in a public right -of -way or on public property. Projects on property owned by a neighborhood or homeowners association will be considered on a case by case basis, if it is shown to provide a communal benefit. ■ Public safety programs or initiatives, such as safety training, crime or fire prevention programs, traffic deterrent or calming projects or studies. ■ Cultural, educational, and recreation programs including literacy programs, leadership training, computer labs, after - school enrichment programs, cultural arts programs, and summer camps. ■ Neighborhood master plan or comparable studies that focus on enhancing the neighborhood. 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Z tr� r+ c O U E U co O_ 0 c O U Z �+ U -C O E O O � c O_ L U O O O m 0_ , r^ L L Q m r LU w (A W � �m co tin 0 0 (n U J c U OU Uj G .� O co Z 4! G m :N d '� O O m � o CU- 0 E c � co W U_ O 00 � p� V 0- O Co -g5 U�� a G E E j 0 C � Zd0 (A�mUUQmJWZ) r+ C 0 0 0 :3 _0 O O O U U U c 0 0 O O O O O G G G G •V LL LL LL LL LL J 5 5 53; d H H H E r� O U) L- 0 V N a U) 0) C O L- (3) _. Lr) L o '- N V } C lL � O _ V (3) V _0 _0 E c m _0 Ln "O N 0 V m 4E Ln O C O O a i d a0 0 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -632, Version: 1 Agenda Information Sheet SUBJECT Consultation with 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 a proposed economic development incentive agreement for the Victor Expansion Project (Victor Technologies International, Inc. and Mohr Partners Inc.) located at 2800 Airport Road, Denton, Texas 76207. This discussion shall include commercial and financial information the City Council has received from the Victor Expansion Project 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. [ID 15 -633] City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -700, 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 information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the S. McCracken Survey, Abstract Number 817, located generally in the 2200 block of East Sherman Street, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and 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. (Williams Rentals LLC - Denton Fire Station No. 4 Rebuild) [ID 15 -701] City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -581, 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. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests, to wit: Lot 1, Block 2 of the Municipal Utility Addition as shown by the plat thereof recorded in Cabinet G Page 346 of the P.R.D.C.T., located in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, switch stations and power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Brinker Substation] [ID 15 -718] City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -652, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Certain Public Power Utilities: Competitive Matters - -- Under Texas Government Code, Section 551.086. Receive competitive public power competitive information and financial information from staff regarding the proposed FY 2015 -2016 operating budget for Denton Municipal Electric ( "DME ") including without limitation, proposed rates for DME for FY 2015 -2016, expected revenues, expenses, commodity volumes, and financial commitments of DME; discuss, deliberate and provide staff with direction. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -716, Version: 1 Legislation Text 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. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests generally located in Denton, Denton County, Texas, East of Bonnie Brae St and West of N Locust St, and terminating at DME's Northlakes substation just South of Loop 288, for the construction, expansion and use of electric power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Bonnie Brae to North Lakes TM line] City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -717, 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. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests in the E. Puchalski Survey, Abstract No. 996, City of Denton, Denton County, Texas, and being generally located in the 900 block of W. Collins Street (Block 4, Hillside Addition, City and County of Denton, Texas). Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Eagle Substation] City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -762, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding potential litigation and legal issues and strategies associated with property located at 1003, 1005 and 1007 E. Sycamore, and Al 184a H. Sisco, Tr 15, 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. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -748, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's attorneys regarding ID15 -744 of the August 18'', 2015 Regular Meeting Agenda, as it concerns legal issues associated with that item where a public discussion of this legal matter 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 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -753, 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 legal strategies associated with the City's pole attachments and pole attachment agreements; a public discussion of these legal issues and legal strategies 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. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FO ' Legislation Text File #: ID 15 -754, Version: 1 Agenda Information Sheet SUBJECT Consult with Attorneys - Under Texas Government Code Section 551.071; Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Consult with and provide direction to City's attorneys regarding legal issues and legal strategies associated with the anticipated access, occupation and /or use of the City's right of way for fiber and /or fiber conduit by Zayo Group, LLC, pursuant to an Exchange Agreement with the Denton Independent School District and the County of Denton, Texas effective July 28, 2015; a public discussion of these legal issues and legal strategies 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. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -742, Version: 1 Agenda Information Sheet SUBJECT Mayor's Summer Youth Jobs Program City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -746, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Monica Jones regarding a complaint on Animal Control and Code Enforcement. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -689, Version: 1 Agenda Information Sheet SUBJECT Willie Hudspeth regarding City Hall. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -750, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Matthew Sallack regarding the positive effect of the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -602, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for upgrading Denton Municipal Electric (DME)'s Geographical Information System (GIS) and related software systems including ArcGIS and ArcFM Database, Responder Outage Management System (OMS), Fiber Manager, ArcFM for Silverlight, ArcFM Mobile Replication, ArcFM Mobile Inspector and related custom code from version 10.1 to 10.2.1; and providing an effective date (RFP 5770- awarded to Power Engineers, Inc. in the not - to- exceed amount of $108,000). The Public Utilities Board recommends approval (6 -0). RFP INFORMATION This Request for Proposals is for the upgrade of Denton Municipal Electric (DME)'s Geographical Information system (GIS) and related software systems. DME must maintain a master repository of records and maps for the installed electric system equipment. A detailed description of the software and its uses is included in the attached Public Utilities Board Agenda Information Sheet (Exhibit 1). Requests for Proposals were sent to 132 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 price, delivery timeframe, compliance with specifications, and indicators of probable performance. The lowest cost proposal was submitted by Televent USA, LLC but their probable performance was scored lower based on previous unsatisfactory job performance with the City of Denton. The second lowest cost proposal was submitted by Power Engineers, Inc. Their probable performance was scored five points higher based upon their excellent performance record on previous design projects that were completed for the City of Denton. Power Engineers, Inc. is an energy engineering consultation firm that specializes in implementing ESRI and Schneider ArcFM GIS solutions for utilities. They are a certified partner of both ESRI and Schneider Electric and have completed implementations and upgrades in many utilities across the country including Arizona Power and Light in Phoenix, AZ, Clallam County Public Utility District in Port Angeles, WA and Dakota Electric Association in Farmington, MN. Therefore, Power Engineers, Inc. was ranked the highest and determined to be the best value for the City of Denton. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On July 13, 2015, the Public Utilities Board recommended approval to forward this item to the City Council for City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -602, Version: 1 consideration. RECOMMENDATION Award to Power Engineers, Inc., in the not -to- exceed amount of $108,000. This amount includes a contingency for incidental remote support after completion of the project. This value contains a 10% amount for integrations or contingencies for required actions that may be discovered during implementation beyond the original scope. PRINCIPAL PLACE OF BUSINESS Power Engineers, Inc. Hailey, ID ESTIMATED SCHEDULE OF PROJECT The project is estimated to be completed within 60 days of notice to proceed. FISCAL INFORMATION The purchase of GIS software upgrade will be purchased from the Electric Fund account number 600500.7804.5880A. Requisition 4124987 has been entered in the Purchasing software system. EXHIBITS Exhibit l: PUB Agenda Information Sheet Exhibit 2: Evaluation/Ranking sheet Exhibit 3: PUB Draft Minutes Exhibit 4: Ordinance Exhibit 5: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Jerry Fielder at 349 -7173. City of Denton Page 2 of 2 Printed on 8/13/2015 EXHIBIT 1 PUBLIC UTILITIES BOARD AGENDA ITEM #5 AGENDA INFORMATION SHEET AGENDA DATE: July 13, 2015 DEPARTMENT: Electrical Engineering UTILITIES ACM: Howard Martin, Utilities, 940 - 349 -8232 SUBJECT Consider recommending approval to award a contract to Power Engineers in accordance with the specifications of RFP 45770 for upgrading Denton Municipal Electric (DME)'s Geographical Information System (GIS) and related software systems including ArcGIS and ArcFM Database, Responder Outage Management System (OMS), Fiber Manager, ArcFM for Silverlight, ArcFM Mobile Replication, ArcFM Mobile Inspector and related custom code from version 10.1 to 10.2.1a in an amount not to exceed $108,000.00. BACKGROUND INFORMATION DME must maintain a master repository of records and maps for the installed electric system equipment. A geographic information/facilities management system (referred to as "GIS ") was the method chosen by the City of Denton (COD) and DME twenty years ago. GIS software assists electric utilities by increasing productivity, and improving services through effective management of spatial data. ESRI was selected as the base system, and the companion Schneider Electric ArcFM electrical specialty line was selected for the electric system data application. The ArcFM electric GIS tool presently allows DME the capability to run database queries on the transmission and distribution electric systems infrastructure, fiber communications infrastructure, and create engineering and operations maps. The electric GIS has become a core product for DME and is now used to provide GIS data that assists with financial fixed asset accounting, budget preparations, and presentations requiring governing board approvals, distribution engineering analysis, and outage management tracking and reporting. If these applications are allowed to continue without staying on currently supported versions, DME could experience serious impacts related to operational, design, and GIS system knowledge capabilities. Any software product needs updates over time. ESRI and Schneider Electric made a significant upgrade in their software to more effectively manage electric network within an electric utility's system. ESRI and Schneider Electric have also dedicated the 10.2.lx platform for utility and telecom data editing. DME's current 10.1 version will soon be transitioning into the stage where an upgrade is required for continued support from ESRI and Schneider Electric. Without the upgrade, regular required software patches will cease and, within twelve months, the software will then no longer be supported by the vendors. An additional influencer is the COD GIS department is scheduled to upgrade to 10.2.2 in 2015. If DME's version is incompatible with COD's GIS version, cross - functional use of the data maintained in the COD database — such as the land base and water utilities information — will not be accessible to DME's System AIS — PUB Agenda Item 45 EXHIBIT 1 July 13, 2015 Page 2 of 3 Operations, Dispatch, Engineering and Operations Departments in real time. DME needs to upgrade so its software will remain compatible with COD GIS's software and this Scope of Work addresses the areas of deficiency which are dependent on proper and reliable operation of the core GIS system. OPTIONS 1. Recommend awarding the purchase of GIS upgrade services to Power Engineers, Inc in the total estimated expenditure not to exceed $108,000.00. 2. Not recommend awarding the purchase of GIS upgrade services to Power Engineers, Inc. and provide staff direction on what other actions to take. RECOMMENDATION DME recommends purchasing the GIS software upgrade services from Power Engineers, Inc. in the total estimated expenditure not to exceed $108,000.00. This value contains a 10% amount for integrations or contingencies for required actions that may be discovered during implementation beyond the original scope. The recommended expenditure amount, including the contingency, is less than the budgeted amount. Power Engineers Inc. is an energy engineering consultation firm that specializes in implementing ESRI and Schneider ArcFM GIS solutions for utilities. Power Engineers is a certified partner of both ESRI and Schneider Electric. Power Engineers has worked with implementations and upgrades in many utilities across the country including Arizona Power and Light in Phoenix, AZ, Clallam County Public Utility District in Port Angeles, WA and Dakota Electric Association in Farmington, MN. In addition, Power Engineers Inc. has worked Distribution and Transmission line design projects for DME in the past and possess an excellent performance record. ESTIMATED SCHEDULE OF PROJECT Upon approval from the Public Utility Board and Denton City Council, it is anticipated this project will begin in August 2015. PRIOR ACTION /REVIEW (Council, Boards, Commissions) No prior action. DATE SCHEDULED FOR COUNCIL APPROVAL Upon approval from the Public Utility Board on July 13, 2015 this will be submitted to the Denton City Council for approval on July 21, 2015. FISCAL INFORMATION The purchase of GIS software upgrade will be funded from account number 600500.7804.5880A. BID INFORMATION The RFP was advertised in accordance with Materials Management procedures. Three responsive proposals were received. The members of the RFP evaluation team were Rebecca Hunter, Jerry Fielder, Trey Price, Sandra Allsup and Sam Mall. Staff recommends the highest evaluated proposal. AIS — PUB Agenda Item 45 EXHIBIT 1 July 13, 2015 Page 3 of 3 EXHIBITS 1. Evaluation of RFP 5770 2. Scope of Services Respectfully submitted: Phil Williams General Manager of Electric Utilities Denton Municipal Electric Prepared by: Jerry Fielder, P.E. Division Engineering Manager — Distribution Denton Municipal Electric F_ Q� W C 0 L � Q W r r O� LL Q L m 0 O 0 Y ^ A A O c C = Y a = N � N V J Q < C Y O c v N W F N c p .0 T W y LU C A Q CL v v ay_ a Z Z u 'a W V o a T 0 o m a o o c o o O 6 r i 0 0 Vf V6 E O m 7 '^ remit r`rn. rmn. ui d N a 4 d E ¢ a Z Z U p y J u y o ou a` G T 0 a o o � v u 3 0 0 0 0 0 co r r ui 7 d Y ry ct if1 O lD a � O m 7 rn remit r`n. rn. vO1i G Ir N Z Z a w u? r co ry m mW N ry N u 4 0 o C. a` O 0 R a` o O C 0 0 0 0 0 0 o m f0 N C1 O 3 c a O N � w H N O A G 09 F a N O Ql U a` Y d m O a` N U_ h N 'o v H � 'o v � a E u 2 O O u '6 O u a 0 0 0 0 0 0 v v v o y a a a rvimi<t °o W °o °o °o 0 l�0 Q N _V ¢ d R C � O a G O O N O G s � 3 '°t a � c m a N 0 a 0 a EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD July 13, 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, July 13, 2015 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901 Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan, Barbara Russell and Charles Jackson Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Lilia Bynum OPEN MEETING: CONSENT AGENDA: 5. Consider recommending approval to award a contract to Power Engineers in accordance with the specifications of RFP 45770 for upgrading Denton Municipal Electric (DME)'s Geographical Information System (GIS) and related software systems including ArcGIS and ArcFM Database, Responder Outage Management System (OMS), Fiber Manager, ArcFM for Silverlight, ArcFM Mobile Replication, ArcFM Mobile Inspector and related custom code from version 10.1 to 10.2. la in an amount not to exceed $108,000.00. Russell asked regarding item #5, how often do we upgrade our system like this, is there a regular basis. Jerry Fielder, Engineering Division Manager, answered DME tries to stay one version behind what our GIS department is. They are about to upgrade to 10.2.2, so DME is upgrading to 10.1.1A. This is about a two year cycle. This has to be watched, if DME gets too far behind the system will not integrate with the GIS system. Motion was made to approve item 5 by Board Member Russell with the second by Board Member Jackson. The vote was 6 -0 approved. Adjournment - 11:13 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR UPGRADING DENTON MUNICIPAL ELECTRIC (DME)'S GEOGRAPHICAL INFORMATION SYSTEM (GIS) AND RELATED SOFTWARE SYSTEMS INCLUDING ARCGIS AND ARCFM DATABASE, RESPONDER OUTAGE MANAGEMENT SYSTEM (OMS), FIBER MANAGER, ARCFM FOR SILVERLIGHT, ARCFM MOBILE REPLICATION, ARCFM MOBILE INSPECTOR AND RELATED CUSTOM CODE FROM VERSION 10.1 TO 10.2. IA; AND PROVIDING AN EFFECTIVE DATE (RFP 5770- AWARDED TO POWER ENGINEERS, INC., IN THE NOT -TO- EXCEED AMOUNT OF $108,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for upgrading Denton Municipal Electric's Geographical Information System and related software systems 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 5770 Power Engineers, Inc. $108,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with EXHIBIT 4 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 5770 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 M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY m BY: EXHIBIT 5 STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT (FILE 5770) THIS AGREEMENT is made and entered into as of the day of by and between the City of Denton, Texas, a Texas Municipal Corporation, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereinafter "OWNER ") and POWER Engineers, Inc., a Corporation, with its offices at 3940 Glenbrook Drive, Hailey, Idaho 83333 (hereinafter "CONSULTANT "); the parties acting herein, by and through their duly - authorized officers and representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows: ARTICLE „I This Agreement is for the purpose of retaining POWER Engineers, Inc. to perform GIS Upgrade services to Version 10.2.1a, for the City of Denton, Texas (the "Project "). CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set forth herein are in connection with the following: ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: A. The CONSULTANT shall perform all those services as necessary and as described in the OWNER's Scope of Work (RFP 5770 — Upgrade to GIS Version 10.2.1a , Exhibit 3) for Denton Municipal Electric, a department of OWNER, which is attached hereto and made a part hereof as Exhibit "A." B. To perform all those services and tasks as set forth in CONSULTANT'S written proposal submitted in response to RFP 5770- Upgrade to GIS Version 10.2.1a for Denton Municipal Electric, a department of OWNER, which proposal is attached hereto and incorporated herewith by reference as Exhibit "D." C. If there is any conflict between the terms of this Agreement and the Exhibits attached to this Agreement, the specific terms and conditions of the proposal shall control over the general terms and conditions of this Agreement, except that the terms and conditions contained in Exhibit 2 (General, Provisions, Terms and Conditions) of the RFP, shall be replaced by this Agreement. File 5770 EXHIBIT 5 ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution by the OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER, and shall remain in force for the period that may reasonably be required for the completion of the Project, and any required extensions approved by the OWNER; or until the monetary consideration expressed herein is wholly exhausted, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expediently as possible and to meet the schedules established by the OWNER. ARTICLE IV, COMPENSATION A. COMPENSATION TERMS: "Direct Non -Labor Expense" is defined as that expense, based upon actual cost, for any expense reasonably incurred by the CONSULTANT in the performance of this Agreement and other incidental reasonable expenses incurred in connection with the Project. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT based upon the rates set forth in Exhibit "D" which is attached hereto and incorporated by reference herewith; a total fee, not -to- exceed $108,000. Progress payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory as reasonably determined by the OWNER, or which is not submitted to the OWNER in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the maximum not to exceed fee as stated hereinabove. C. PAYMENT If the OWNER fails to make payments due the CONSULTANT for services within thirty (30) days after receipt of the CONSULTANT'S undisputed statement thereof, the amounts due the File 5770 EXHIBIT 5 CONSULTANT will be increased by the rate of interest then provided and applicable under the Texas Prompt Payment Act from and after the said thirtieth (30th) day after the City's receipt of invoice; and in addition, the CONSULTANT may, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER for services. Provided, however, nothing herein shall require the OWNER to pay the amount of the billing invoice of CONSULTANT, with such notice provided to CONSULTANT within fifteen (15) days after receipt of the invoice, that the work is unsatisfactory, in accordance with Article IV of this Agreement. ARTICLE V OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any of its subcontractors or subconsultants. ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants, if any) pursuant to this Agreement are instruments of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this project and OWNER'S use of these documents in other projects shall be at OWNER'S sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, CONSULTANT is released from any and all liability relating to their use in that project. Notwithstanding the above, CONSULTANT shall have unlimited rights in such documents, to the extent such documents do not contain the proprietary information of OWNER. All information and material which is owned by CONSULTANT and used by CONSULTANT in the performance of this Agreement shall remain the exclusive property of CONSULTANT whether or not such information or material was incorporated in, adapted for use in, or used to produce any documents delivered under this Agreement. In addition, and not in limitation of the foregoing, OWNER acknowledges and agrees that CONSULTANT retains and may use the product of its engineering effort expended on behalf of OWNER for its general reference and enhancement of its engineering capabilities and that CONSULTANT retains all rights to the know -how, including but not limited to ideas, concepts, theories and techniques with respect to how to perform the services hereunder. ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. File 5770 EXHIBIT 5 ARTICLE VIII INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE IX, INSURANCE During the performance of the Services under this Agreement, CONSULTANT 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; please reference Attachment "B" hereto, for the said insurance requirements. ARTICLE X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XI TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty -(30) day's advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance or other reason(s), and not less than (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services File 5770 EXHIBIT 5 to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable expenses prior to notice of termination being received by CONSULTANT, in accordance with Article IV of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and the new consultant. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination but may maintain copies of such documents for its files. CONSULTANT agrees that it shall also fully comply with any and all written requests received from the OWNER, through its Director of Solid Waste, to maintain confidentiality respecting certain designated records, documents, and other written materials related to the Project, which the OWNER reasonably determines is competitively sensitive, and would likely cause damage to the OWNER if disclosed to the public or to any other person, party, or entity. ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, agents, subcontractors, and sub - consultants for the accuracy and competency of their work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its officers, employees, agents, subcontractors, and sub - consultants. B. The OWNER agrees to limit the CONSULTANT's liability for insurable events arising from the CONSULTANT's performance to the insurance limits herein. C. Neither the OWNER nor the CONSULTANT nor either party's suppliers, agents, officers, and directors shall have any liability regardless of the theory of recovery, including breach of contract or negligence, to the other party or any other person or entity for any indirect, incidental, special, or consequential damages, cost or expense whatsoever, including but not limited to loss of revenue or profit, whether actual or anticipated, loss of use, failure to realize anticipated savings, loss of or damage to data or other commercial or economic loss. This waiver of consequential damages is made regardless that (i) either party has been advised of the possibility of such damages and (ii) that such damages may be foreseeable. ARTICLE XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, by means of U. S. Mail, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein. File 5770 To CONSULTANT: EXHIBIT 5 To OWNER: POWER Engineers, Inc. City of Denton, Texas Attn: Bart Koenig Attn: City Manager 1620 South Ashland Avenue, Denton City Hall Suite 106 215 East McKinney Street Green Bay, WI 54304 Denton, Texas 76201 Telephone: (920) 432 -1820 Telephone: (940) 349 -8407 and City of Denton, Texas Purchasing Manager City of Denton 901B Texas Street Denton, Texas 76209 Telephone: (940) 349 -7133 All notices under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given. ARTICLE XIV ENTIRE AGREEMENT This Agreement, consisting of ten (10) pages and four (4) exhibits, constitutes the complete and final expression of the Agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. File 5770 EXHIBIT 5 ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XVIII PERSONNEL A. The CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XIX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT shall promptly notify OWNER, in writing, of any change of its name as well as of any material change in its corporate structure, its location, and/or its operations. ARTICLE XX MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXI MISCELLANEOUS A. The following Exhibits are attached to and made a part of this Agreement: 1. Exhibit "A" - -- OWNER'S Scope of Work (RFP 5770 - Exhibit 3) 2. Exhibit `B" - -- Insurance Requirements of the City of Denton, Texas File 5770 EXHIBIT 5 3. Exhibit "C" - -- Conflict of Interest Questionnaire 4. Exhibit "D" - -- CONSULTANT'S proposal and Scope of Work (RFP 5770- Upgrade to GIS Version 10.2.1a) B. OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement. The CONSULTANT shall retain such books, records, documents and other evidence pertaining to this agreement during 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 CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the City similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 2% or greater. If an overpayment of 2% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONSULTANT which must be payable within fifteen (15) business days of CONSULTANT'S receipt of the OWNER'S invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S 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. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key person who will serve as Project Manager respecting this engagement shall be Rick Frymyer, Senior Account Manager of CONSULTANT. However, nothing herein shall limit CONSULTANT from using other qualified and competent engineers, consultants and administrative support personnel of their firm to perform the services required herein. E. CONSULTANT shall commence, carry on, and complete its work on the Project with all applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof. In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the File 5770 EXHIBIT 5 CONSULTANT to perform professional services under this Agreement. G. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. H. OWNER, without invalidating this Agreement, may order changes in the scope of work consisting of additions, deletions, or other revisions, CONSULTANT's compensation and the design completion date being adjusted accordingly. All such changes in the Project shall be authorized by Contract Amendment, signed by OWNER and CONSULTANT. CONSULTANT shall not be required to perform out -of -scope or extra work without its written approval. A Contract Amendment is a written order to CONSULTANT, signed by the OWNER (or its authorized agent) and CONSULTANT, issued after the execution of this Agreement, authorizing an addition, deletion, or revision in the Services or an adjustment in the Contract Price or the Schedule. The increase or decrease in the Contract Price and change in Schedule resulting from a change in the Project shall be determined by mutual agreement. ARTICLE XXII CONFIDENTIALITY City and Consultant agree that in the performance of the services covered by this Contract, that Consultant will come into contact with certain information that is public power competitive information, which is protected from public disclosure under Texas law. City understands the need for Consultant to continue to render services to other public electric utilities, but must caution Consultant that any information regarding the DME system itself must be kept confidential. City recognizes the need for Consultant to use its systems and know -how acquired in this project in future projects, however, the competitive public power information acquire by Consultant from the City shall not be disclosed to any unrelated third -party or member of the public. IN WITNESS WHEREOF, the City of Denton, Texas has executed this Agreement in three (3) original counterparts, by and through its duly - authorized officials; and CONSULTANT has executed this Agreement by and through its duly - authorized undersigned officer, on this the dayof ..............n.._n.._n. ..................._... ,............_, _ .. 2015. "OWNER" CITY OF DENTON, TEXAS A Texas Municipal Corporation File 5770 GEORGE C. CAMPBELL, CITY MANAGER EXHIBIT 5 ATTEST: JENNIFER WALTERS, CITY SECRETARY Lo APPROVED AS TO LEGAL FORM: ANrrA BURGESS, CITY ATTORNEY 0 6cCONST-JLTA'114T99 POWER Engineers, Inc. A Corporation By: ATTEST: BY File 5770 EXHIBIT 5 EXHIBIT A- RFP 5770 Scope of Work The scope of work shall be finalized upon the selection of the Firm. The respondent's submission shall have accurately described your understanding of the objectives and scope of the requested products and services and provided an outline of your process to implement the requirements of the Scope of Work and Services. It is anticipated that the scope of work will include, at a minimum, the following: Denton Municipal Electric (DME) requests the following GIS upgrade including ESRI ArcGIS and Schneider ArcFM software products from version 10.1 to version 10.2.Ia. 1. Three client references with a proven pattern of implementation and upgrades of ArcGIS, ArcFM and related products. (Main RFP Document, EXHIBIT D) 2. Project Manager (PM) from Vendor assigned to DME Upgrade Project. a. PM is responsible for coordination of all DME & Vendor stakeholders in project. 3. Kick -off meeting to start plan for upgrade a. Meeting will cover the following: i. Team Members Introduction ii. Deliverables iii. Project Plan & Timeline iv. DME & Vendor Responsibilities for Project 4. Upgrade of all DME GIS custom components including: a. Autoupdaters i. Transformer LabelText. ii. Conductor LabelText. iii. Feature class asset updates from inventory system. iv. TransformerID update on Service Locations when Transformer Units are updated. v. BankKVA in Transformer bank when Transformer Units are updated. vi. Meter number in Service Accounts and Service Locations when a record in the Meter Unit table is updated. b. Custom Inspector Autoupdaters. i. Update inspection status on inspected feature classes c. Responder Integrations. i. Milsoft PORCHE IVR 1. Inbound Multispeak 3.Oab integration 2. Outbound callbacks to IVR ii. Harris Northstar CIS iii. OSI SCADA SCADA 1. Inbound /Outbound Multispeak 4.16 integration d. Vendor will provide DME with a copy of the code from the upgraded DME GIS custom components 5. Upgrade of GIS database, ArcFM tools, and DME custom components in vendor test environment. File 5770 EXHIBIT 5 a. ArcFM tools include: i. Model Name Assignments ii. Special AutoUpdater Assignments iii. Field AU Assignments iv. Relationship AU Assignments v. Relationship Rules vi. Connectivity Rules vii. Snapping Rules viii. Process Framework configuration ix. Responder Configuration 1. IVR Integration 2. CIS integration 3. SCADA integration 4. Configuration files 6. Implement Feeder Manager 2.0 on the DME GIS database and document all changes related to enabling Feeder Manager 2.0 at DME. This implementation will need to be performed in a test environment before production so that it can be tested. On the production database, DME will determine if Feeder Manager 1.0 is ran in parallel with Feeder Manager 2.0 or if Feeder Manager 2.0 will be run only, based upon tests performed by the vendor and DME. 7. Upgrade of GIS Database, ArcFM tools, ArcGIS Desktop, Responder, Geodatabase Replication, and DME custom components in DME Test Environment. a. Performed Onsite at DME. 8. Upgrade of GIS Database, ArcFM tools, ArcGIS Desktop, Responder, Geodatabase Replication, and DME custom components in DME Production Environment. a. Production upgrade performed onsite at DME. i. Time should be allowed for Backup Environment to be upgraded b. Upgrade deployment plan will be developed as part of upgrade to test environment. c. Upgrade components include: i. Clients (Responder, ArcMap, Primary and Backup sites) ii. Databases (Primary & Backup sites) iii. Custom Components iv. ArcFM tools v. Geodatabase Replication & Mobile Redliner /Inspector clients 9. Post - rollout remote support for at least 10 business days or 48 hours from vendor for any related issues after the upgrade. 10. Vendor will provide as- needed support based upon a pre - determined rate for up to three months following the upgrade for any issues. This includes issues with the GIS database upgrade, ArcFM tools upgrade and DME GIS custom components upgrade. File 5770 EXHIBIT 5 EXHIBIT B- INSURANCE REQUIREMENTS AND WORKERS' COMPENSATION Respondent's attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their respective insurance carriers or brokers to determine in advance of Proposal /Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low respondent fails to comply strictly with the insurance requirements, that respondent may be disqualified from award of the contract. Upon contract award, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of contract award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time, however, Contractors are strongly advised to make such requests prior to proposal/bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposal/bid Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A 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 5770 EXHIBIT 5 • 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 $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. File 5770 EXHIBIT 5 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than 50$ 0,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. 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. [X] 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. File 5770 EXHIBIT 5 [ ] 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. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] 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 5770 EXHIBIT 5 Exhibit B - Cont'd [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and File 5770 EXHIBIT 5 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, File 5770 EXHIBIT 5 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 contract by the contractor which entitles the governmental entity contract void if the contractor does not remedy the breach within receipt of notice of breach from the governmental entity. File 5770 is a breach of to declare the ten days after EXHIBIT 5 ATTACHMENT C- CONFLICT OF INTEREST QUESTIONNAIRE CONFLICT OF....�......... ,...___.._.. -. mITITm INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental 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. 1 Name of person who has a business relationship with local governmental entity. Check this box if you are filing ���� � � ��� -�� ��������� �� -- ���� 2 g 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 inall filed questionnaire becomes incomplete or inaccurate.) µµµµw .... :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 El No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 9. Yes 1-: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? El Yes 1::1 No D. Describe each affiliation or business relationship. 4 -- .____� ......... .... - - -I have no Conflict of Intere st .............. .. ..... . ....._ __-____ -_ .._. _. ........ ...__............. to disclose. ..... —_ - I' Signature of person doing business, th the governmental entity Date �m. .......wW L, File 5770 EXHIBIT 5 Exhibit D RFP 5770 Pricing for DME GIS Upgrade to Version 10.2.1a Optional Services: OPT1 HR Optional Remote Support (10 days to 3 months post implementation) File 5770 $165.00 POWER Engineers Hailey, ID Services l'ro osal - Breakout Pricin for GIS Upgrade to Version 10.2.1a Proposed Lump Sum - Number of ITEM UOM Type of Service Requested Cost of CALENDAR AR Days O y Complete omplete Breakdown I Project 1 LS Kickoff $2,700.00 1.5 2 LS Upgrade of DME Custom Components and Integration $19,800.00 17 3 LS Upgrade of DME Test Environment and Testing 28 Upgrade of DME Production and Testing E$59,000.00 00.00 12 Total $98,000.00 59 Optional Services: OPT1 HR Optional Remote Support (10 days to 3 months post implementation) File 5770 $165.00 EXHIBIT 5 Exhibit D — Continued Scope of Work Task Series 1: Project Kickoff 1.1 Project Planning The POWER project manager will coordinate with the DME project manager to define and develop the agenda for the kickoff meeting. This typically includes identifying participants, key project team members, scope and schedule review, and any other items relevant to the success of the project such as reporting and communication. 1.2 Kickoff Meeting POWER will lead a four (4) hour remote kickoff meeting with the DME project team. This meeting is intended to review the scope and schedule defined in task 1. 1, answer questions of the team, and to set the overall expectations of the project. Deliverable(s) • Revised Project Plan (POWER) • Lead Remote Meeting (POWER) Task Series 2: Upgrade DME Custom Components and Integrations 2.1 GIS Custom Component Upgrade POWER will upgrade the existing custom code listed below to be compatible with the Esri and ArcFM software versions being implemented. POWER will provide DME with the appropriate installer(s) and upgraded source code. GIS Custom Components: - Transformer Label Text AU - Conductor Label Text AU - Feature Class Asset Updates AU - Transformer ID AU - Bank KVA AU - Meter Number AU - Update Inspection Status AU Deliverable(s) • Original source code (DME) • Upgraded source code (POWER) • Custom code installer (POWER) File 5770 EXHIBIT 5 Assumption(s) • DME will provide the source code to be upgraded from the list above • No new functionality will be made to the custom code 2.2 Integrations Upgrade POWER will upgrade the existing integrations listed below to be compatible with the Esri and ArcFM software versions being implemented. POWER will provide DME with the appropriate installer(s) and upgraded source code. Integrations: - PORCHEIVR - Harris Northstar CIS - OSI SCADA Deliverable(s) • Original source code (DME) • Upgraded source code (POWER) • Custom code installer (POWER) Assumption(s) • DME will provide the source code to be upgraded from the list above • No new functionality will be made to the custom code Task Series 3: Upgrade DME Test Environment and Testing 3.1 Upgrade DME Test Environment POWER will use remote access and onsite services to upgrade the DME Test Environment. This includes: - Installing the core Esri and ArcFM software - Configuring Feeder Manager 2.0 - Installing custom components - Upgrading ArcFM and Responder databases and configurations - Configuring jumpers - Upgrading ArcFM mobile components - Upgrading the ArcFM Server components Deliverable(s) • Upgraded Test Environment (POWER) • I.T. Support as required (DME) Assumption(s) • DME will be responsible for all hardware install and configuration File 5770 EXHIBIT 5 • DME will be responsible for installation of all core operating system and RDBMS software • DME will be responsible for acquiring all software and licensing • POWER will install up to 5 desktop client machines • POWER will install up to 5 mobile client machines • POWER will install up to 5 Responder client machines 3.2 System Acceptance Testing POWER will provide five (5) total days of onsite support during testing of the system by DME. Prior to testing DME will provide POWER with the test plans to be used for system acceptance testing. POWER will use the test plans to validate system readiness prior to releasing the system to DME. Deliverable(s) • Five (5) days of onsite testing support and issue resolution (POWER) • System test plans (DME) • I.T. Support as required (DME) Task Series 4: Upgrade DME Production Environment System Verification. and Rollout Support 4.1 Upgrade DME Production Environment POWER will work directly with the DME team to plan and execute the upgrade of the production environment following the system testing in Task Series 3. This includes: - Installing the core Esri and ArcFM software - Configuring Feeder Manager 2.0 - Installing custom components - Upgrading ArcFM and Responder databases and configurations - Configuring jumpers - Upgrading ArcFM mobile components - Upgrading the ArcFM Server components Deliverable(s) • Upgraded Production Environment (POWER) • I.T. Support as required (DME) Assumption(s) • DME will be responsible for all hardware install and configuration • DME will be responsible for installation of all core operating system and RDBMS software • DME will be responsible for acquiring all software and licensing • POWER will install up to 5 desktop client machines • POWER will install up to 5 mobile client machines File 5770 EXHIBIT 5 4.2 System Verification Using the test plans from Task Series 3, POWER will support DME to verify the production system is ready for release to the end - users. Deliverable(s) • System Verification Support (POWER) • I.T. Support as required (DME) 4.3 Rollout Support POWER will provide up to 48 hours of remote system support during the first 10 days of production deployment. Deliverable(s) • Remote system support for up to 48 non - consecutive hours during the first 10 days of production deployment (POWER) File 5770 d POWR", V�EN GIN EERS MMIMMUM EMMUMM MMMAD M51.9 OMMUMMMIN File 5770 EXHIBIT 5 Exhibit D — Continued Scope of Work Y/5 6 '0�" , P, /YD UMIUM R,Fhwma flumbw, CPPB samurBaw Cdy afDmdm 9018 TMM ShVA� Nubm, TW 762019 SImUl you tav* aq fmq queshras qm mumsms, Plaw,* 40 UA he,&Oe W COMM1 me dimmy, v........... EXHIBIT 5 CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDIWYIO 7/30/2015 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, IfSUBROGATION! 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 NTA T JAr NO Ola NAME; �' 1r Greyling Insurance Brokerage PHONE (770) 552 -4225 qIy (e6s)sso -4082 3780 Mansell Road AIL . -' '. noyo].a0greyli:rrg. com Spite 370 INSURE S AFFORDINGCOVERAGE NAICp Alpharetta GA 30022 INSURER ANational Union Fire Ins Cc 19445 INSURED lNsuRERs,, ew ylppahire Insurance CcrRlaay 23841 g iNSuRERc:Syndicate , 23 at Lloyd's POWER Engineers, Inc. 26236 3940 Glenbrook Drive INSURER 0: P.O. BOX 1066 INSURER E..... - - - - -- .— _. ... - ........................................... ..................._�,,........ _...— .........,.n,- ......., - -.... Hailey ID 83333 INSURER F: COVERAGES CERTIFICATE NUMBER:15 -16 (PEI) 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. INSIi .......A„ ,..._........m. POLVCY EFF... POLICY . .,,.,...mm.,,,,,.�... __ .................�m......� T TYPE OF INSURANCE POLICY NUMBER gk1M D ifP LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 "X COMMERCIAL GENERAL LIABILITY 500,000 A CLAIMS -MADE OCCUR 5094741 /1/2015 /1/2016 MEDEXP (Any one person) $ 25,000 X ^Contractual Liability PERSONAL &AD 1 000 000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 2,000,000 POLICY X Pry- X LOC $ AUTOMOBILE LIABILITY O B NED IN E LIMIT.... Ea accident) ..,.,.,. 11000, 000 A X ANY AUTO BODILY INJURY (Per person) $ .... nmm. ALL OWNED SCHEDULED Bo 6403759 (ADS) /1/2015 /1/2016 DILY INJURY (Per accident) $ A „X AUTOS X NON -OWNED 6403760 (MA) 4/1/2015 /1/2016 PROPERTY DAMAGE $ HIRED AUTOS AUTOS UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $� DED RETENTION $ $ WC B AND EMPLOYERS' LIABILITY YIN 39901492 (ADS) / ., —, TORIUM OFOFICERIMEMBER/EXCLUDR /E ECUTIVE N N /A 4 1/2015 4/1/2016 // X E.L. EACH ACC DENT Ol $ 1 000 000 A „�..�c ..... -_. L.— (Mandatory In NH) °•--•� 39901493 (CA) / / E.L. DISEASE - EA EMPLOYE _1_1_,_000,000 If yyes, describe under DESCRIPTION,OF OPERATIONS below E.L. DISEASE. -. POLICY LIMIT $ ..... 11000,000 _ . .......... C Professional Liability N13B97150301 4/1/2015 /1/2016 Per Claim $5,000,000 1. Aggregate $5,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) The City of Denton, its Officials, Agents, Employees & Volunteers are named as Additional Insureds with respects to General & Automobile Liability where required by written contract. The above referenced liability policies with the exception of professional liability are primary & non - contributory where required by written contract. Waiver of Subrogation is applicable where required by written contract & allowed by law. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Denton ACCORDANCE WITH THE POLICY PROVISIONS. 901 -B Texas Street Denton, TX 76209 AUTHORIZED REPRESENTATIVE David Collings /JERRY ACORD 25 (2010/05) ©1988 -2010 ACORD CORPORATION. All rights reserved. INS025 (2n1nn61 o1 Tho ArORn names anrl Innn arP rania}PrPrt mark¢ of ACARn City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -667, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling Department CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider approval of a resolution authorizing the filing and acceptance of a contract with the Texas Commission of Environmental Quality (TCEQ) for a Texas Emissions Reduction Plan Rebate Grant; delegating and authorizing Arden Vance Kemler, Solid Waste & Recycling Services General Manager, or his designate, to act on behalf of the Solid Waste & Recycling Department in all other matters that are related to this project application, pledging that if funding for this capital project is received, the City of Denton will comply with all project requirements of the Texas Commission on Environmental Quality, and the State of Texas, and providing for an effective date. BACKGROUND In April 2015, the Solid Waste & Recycling Department (SW &R) submitted a Texas Emissions Reduction Plan (TERP) Rebate Grant application, for a potential grant award towards the purchase of an Articulated Water Truck. The grant was established to reduce emissions in the state's nonattainment areas, and requires awarded applicants to permanently decommission their replacement equipment listed in the application. The Solid Waste is seeking the replacement of a 1972 Caterpillar Water Wagon, which is currently in operation at the Landfill. This piece of equipment meets the qualifications for the grant. The grant proceeds are provided to aid in funding the purchase of replacement off road landfill equipment, which have lower NOx emission levels and achieve the goals outlined within the TCEQ grant criteria. Notification from the Texas Commission of Environmental Quality (TCEQ) was received in June 2015, that the SW &R rebate grant application and materials submitted during April 2015 was selected to receive a grant totaling $112,667. The grant is classified as a rebate grant, which permits the TCEQ to reimburse the Department after the equipment is purchased and delivered to Denton's site. Due to the timeline submittal and review window within the grant specification document, staff applied for the grant, which has now been awarded. Staff is requesting the PUB and City Council retroactively recommend approval to receive the grant in order to meet the grant timeline and compliance issues, and move forward with the equipment acquisition. The SW &R has an articulated water wagon budgeted as a capital equipment replacement for FY 2016, budgeted at $640,000. The life of this piece of equipment should exceed ten years. The 1972 replacement asset, which must be decommissioned per grant criteria, will not provide a resale value near the grant amount in an auction environment. City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -667, Version: 1 To utilize the FY 2016 capital equipment funding, staff anticipates bringing forward a reimbursement ordinance providing for the utilization of the capital funds prior to the FY 2016 bond sale. This should occur as soon as possible after the City Council approves a FY 2016 SW &R operating and capital budget. OPTIONS The City Council of the City of Denton, Texas may recommend approval of the TCEQ's Texas Emission Reduction Plan (TERP) Rebate Grant, or they may provide additional direction to the staff concerning the grant opportunity. RECOMMENDATION Staff recommends that the Council recommend approving the receipt of the Texas Emissions Reduction Plan (TERP) Reimbursement Grant for use towards the purchase of an articulated water wagon in the amount of $112,667. PRIOR ACTION /REVIEW (Council, Boards, Commissions) Public Utilities Board recommended July 13, 2015. FISCAL INFORMATION The capital equipment purchase will be funded using five year bonds from a SW &R job cost capital account. Once the equipment is purchased and delivered, staff will submit the purchase documentation to the TCEQ, and the TCEQ will reimburse the City of Denton $112,667. The grant funds received will be placed into the Solid Waste Vehicle & Equipment Fund, Fund 665. EXHIBITS 1. Texas Emissions Reduction Plan Rebate Grant Program Contract 2. Texas Emissions Reduction Plan Rebate Resolution Respectfully submitted: A. Vance Kemler General Manager, Solid Waste & Recycling Services Prepared by: S. Lebsack Development & Administrative Manager, Solid Waste & Recycling Services City of Denton Page 2 of 2 Printed on 8/13/2015 Texas Commission on Environmental Quality Grant Agreement for I 111*11CRE 4&16*4 LOR REV 4 Q 5010 1111 lZrAft 111164 N1 ki ra I Contract Name Texas Emissions Reduction Plan Rebate Grants Program Contract No. 582-15-56611-0978 . ............ . ............... PERFORMING PARTY Name City of Denton .......... — - — - — - --------- -- Total Contract Amount Not To Exceed $112,667.00 ...... . . ............. Effective Date Expiration Date The Effective Datcof this Contract is the date on which August 31, 2024 the Contract is sigr ed by the last of the parties to sign. The ... . . ........... . . Texas Commission on Environmental Quality (TCEQ), an agency of the State of Texas and the named PERFORMING PARTY enter this Agreement (Contract) for the purpose of providing financial assistance for emissions reduction projects as authorized by Texas Health and Safety Code Chapter 386. The Parties agree: the PERFORMING PARTY will conduct the Grant Activities required by the Contract; and the TCEQ will reimburse authorized Allowable Costs subject to the Texas Uniform Grant Management Standards and the Contract. Texas Commission on Environmental (PERFORMING PARTY) Quality (TCEQ) . ........ . By (Authorized Signature): Printed name: David Brymer Title: Director, Air Quality Division Date of Signature: 2-4, 2-0 5 Contact Names, Addresses Texas Commission on Environmental (PERFORMING PARTY) Quality (TCEQ) Grant Manager Name: Joe Walton Mr. Nicholas L. Vincent Contact Numbers: (512) 239-4143 (940) 349-8063 Contact and Address for Notices: TCEQ City of Denton P.O. Box 13087 (MC-204) 1527 South Mayhill Road Austin, Texas 78711-3087 Denton, Texas 76208 GENERAL CONDITIONS for TEXAS EMISSIONS REDUCTION PLAN REBATE GRANT PROGRAM (TERP Rebate) ARTICLE 1. DEFINITIONS Unless defined herein, terms in this Agreement and Contract Documents will have the meanings provided in the Uniform Grant Management Standards (UGMS) or the Guidelines for Emissions Reduction Incentive Grants (RG -388). The following terms have the meanings indicated, 1.1 Activity Life — the period established by the TCEQ and designated in the Scope of Work that is used to determine the emissions reductions and cost effectiveness of the activity. The start date for the Activity Life will be established by the TCEQ. The TCEQ will notify the PERFORMING PARTY in writing of the Activity Life start and end dates for each activity upon completion of all reimbursements under this Agreement, submission by the PERFORMING PARTY and acceptance by TCEQ of the final disposition verification forms if required, and confirmation of initiation of TERP GPS Monitoring Service (TGMS) service if required. For replacement and repower activities, the TCEQ will normally set the start date of the Activity Life on the date the TCEQ receives notification that the vehicle, equipment, and /or engine being replaced was disposed of. 1.2 Annual Usage - the use factor designated by the TCEQ in the Scope of Work based on the hours of operation, miles traveled, or fuel consumption. The PERFORMING PARTY's performance and accurate reporting of Annual Usage requirements is material to achieving the emissions reductions calculated in awarding the grant. 1.3 Application - the application for TERP Rebate grant submitted by the PERFORMING PARTY including any amendments or supplemental cunditiors added to the application. An Application may include one or motie Supplemental Forms, which pertain to the individual activities to be conducted under the grant. The Application is used to develop the Scope of Work of this contract. In case of conflict between the Application and Scope of Work, the Scope of Work will take precedence. 1.4 Baseline Cost - a specific amount designated by the TCEQ in the Approved Application to reflect the costs that would otherwise be incurred by the PERFORMING PARTY in the normal course of business, as determined according to the provisions of the Guidelines for the Emissions Reduction Incentive Grants (RG -388). 1.5 Effective Date of the Agreement - the date indicated in the Agreement on which the Agreement becomes effective; but if no such date is indicated it means the date on which the Agreement is signed by the last of the two parties to sign and deliver. 1.6 Eligible Counties - the counties designated as affected counties in 386.001(2), Texas Health and Safety Code, and the additional counties included in a non - attainment area designated by the TCEQ. The TCEQ may designate a sub- set of these counties as eligible counties for each grant round. The eligible counties applicable to this contract are listed in the Request for Grant Applications for the TERP Rebate program and in the Application. 1.7 Final Completion - the Grant Activities are completed in the judgment of TCEQ. This will usually occur upon the completion of the longest- running Activity Life of the Grant Activities under this Agreement. 1.8 Global Positioning System (GPS) - a space- based, radio - positioning system nominally consisting of a minimum 24- satellite constellation that provides navigation and timing information to military and civilian users worldwide. 1.9 Grant Activity /Activities - activities the PERFORMING PARTY has agreed to perform under this Contract that are detailed in the Scope of Work. 1.10 Grant Agreement — means the agreement between TCEQ and the PERFORMING PARTY in writing, consisting ofthe documents listed in Article 10, Contract Documents. The term Grant Agreement shall be used interchangeably as "Agreement ", "Contract ", or "grant ". 1.11 Grant Equipment - the equipment, real property, vehicles, qualifying fuel, infrastructure, processes and technology, and the related goods and services in a Grant Activity for which the cost of purchase, lease, or utilization is reimbursed by the TCEQ under the Agreement. The term includes replacements for the Grant Equipment which is lost, stolen, or irreparably damaged. 1.12 Incremental Costs — the cost of an approved Grant Activity less a baseline cost that would otherwise be incurred by the PERFORMING PARTY in the normal course of business, as determined according to the provisions of the Guidelines for the Emissions Reduction Incentive Grants (RG -388). 1.13 Minor Change - a written document which provides for minor changes in the work in accordance with these General Conditions, but which does not involve a change in the Contract Amount or the Contract Period. 1.14 Monitoring Report — periodic written reports required during the Activity Life of a grant project to verify compliance with the Annual Usage requirements of the Scope of Work. 1.15 NOx - oxides of nitrogen (NOx) are a class of pollutants formed when fuel is burned at a very high temperature (above 1200° F), such as in automobiles and power plants. For air pollution purposes, it is composed primarily of nitric Contract No. 582 -15- 56611 -0978 Page 3 4.3 Time Limits on Funds (Period of Funds Availability). Costs to be reimbursed under this Contract must be incurred and paid by May 31, 2017. 4.4 Reimbursement is limited to costs determined by the TCEQ in its sole discretion as eligible. 4.5 The maximum TCEQ reimbursement amount is not a guarantee of payment. The actual amount of reimbursement may be less than the maximum and will be determined by the TCEQ. ARTICLE 5. CONTRACT PERIOD 5.1 This Contract will commence on the Effective Date of the Contract. 5.2 The Contract Period shall be the period of time from the Effective Date of the Contract through the Expiration Date listed on the Signature Page of this Contract, or the completion of the Reporting Period as specified in the Scope of Work, whichever is earlier; unless the Contract is otherwise terminated or extended in accordance with its terms. 5.3 Due to the time limitations on availability of the grant funds, the TCEQ's obligation to reimburse the PERFORMING PARTY's allowable costs incurred and paid under this Contract shall expire forty -five (45) days after date indicated in Article 4. If no reimbursement has been requested or paid as of this date, this Contract will terminate without any further obligations to either party. 5.4 This Contract shall immediately terminate at the end of any state fiscal year for which the Texas Legislature fails to appropriate and /or to provide sufficient funds in the subsequent fiscal year necessary to perform this Contract. ARTICLE 6. NOTICE TO PROCEED 6.1 The TCEQ's funding for the reimbursement grants described in this Agreement may currently be unavailable or uncertain and the amount of funding may be unknown. 'l- fficient use of public funds may be achieved by entering into agreements with potential grantees in which reimbursements are contingent on availability of funds and a subsequent selection by the TCEQ. If funding for a reimbursement grant becomes available, the TCEQ, in its sole discretion, will select which of the contingent agreements will receive reimbursement and will issue a Notice to Proceed for any selected project. 6.2 The PERFORMING PARTY may begin the Grant Activities, at its own risk, prior to receiving a Notice to Proceed. However, regardless of the availability of funding, if this Agreement is not selected and a Notice to Proceed is not issued, the TCEQ will not provide reimbursement for the cost of the Grant Activities. Either party may terminate this Agreement prior to issuance of a Notice to Proceed, with no further obligation under this Agreement. If this Agreement is selected, the TCEQ will issue to the PERFORMING PARTY a Notice to Proceed, after which all other obligations and provisions of this Agreement shall apply. 6.3 Regardless of selection of this Agreement and the issuance of the Notice to Proceed, the reimbursement of the costs of the Grant Activities is subject to all other requirements of this Agreement. This Agreement does not create an entitlement to receive state funds and all payments are solely within the discretion of the TCEQ. 6.4 This Agreement may be entered into before the completion of the Scope of Work. The TCEQ reserves the right to withhold issuance of the Notice to Proceed until the Scope of Work is completed and incorporated into this Agreement. Completion and incorporation of the Scope of Work in no way obligates TCEQ to issue the Notice to Proceed. 6.5 The TCEQ may award a grant that does not include all of the information required for completion of the application forms, including identifying information for equipment, vehicles, or engines. The TCEQ may withhold issuance of a Notice to Proceed, pending the PERFORMING PARTY providing additional information needed to complete the Scope of Work. ARTICLE 7. ELIGIBLE ACTIVITIES 7.1 Subject to the provisions of this Article, the PERFORMING PARTY agrees to complete all Grant Activities as described in the Scope of Work and in accordance with the Contract Documents. 7.2 For replacement activities, the vehicle or piece of equipment being acquired under a grant may not have been acquired prior to February 9, 2015, unless otherwise approved by the TCEQ. 7.3 For repower activities, eligible costs submitted for reimbursement under a grant may not have been incurred prior to June 26, 2014, and must be approved by the TCEQ. ARTICLE 8. FUNDING, LEGAL AUTHORITY, AND LIABILITY 8.1 This Agreement and all claims, suits or obligations arising under or related to this Agreement are subject to and limited to those funds which are both: 1) appropriated by the Texas Legislature for the purposes of this Agreement and 2) actually received and deposited into an account of the treasury dedicated to the TCEQ for the purposes of this Agreement. 8.2 Any state funds provided are appropriated to TCEQ under the Appropriations Act (Senate Bill 1) of the 83rd Texas Legislature and expenditure is authorized by Chapter 386, Texas Health and Safety Code. Contract No. 582 -15 -56611 -0978 Page 5 11.4.4 any significant deviations from the PERFORMING PARTY's established practices. Necessary Costs 11.5 Necessary cost8 include costs which are directly attributable to the implementation of the Grant Activities and must be included in the Scope of Work. 11.6 Unless expressly authorized by the TCEQ, necessary costs do not include: 11.6.1. the cost of money; or 11.6.2. the interest charges on a purchase money loan or on a deferred payment purchase agreement; or 11.6.3. the cost of converting from a lease to a purchase at the end of the lease period. Actual Costs 11.7 The criteria for actual costs include: 11.7.1. the direct Incremental Costs of implementing the Grant Activities; or 11.7.2. the true price charged by a vendor /contractor to the PERFORMING PARTY for implementing the Grant Activities. 11.8 Unless expressly authorized by the TCEQ, actual costs do not include: 11.8.1. amounts deducted from the true price of the purchase or lease acquisition of Grant Equipment whether as discounts, rebates, refunds or otherwise; v, 11.8.2. amounts which the PERFORMING PARTY owe-- or aq,, :es to pay a vendor or contractor for any purpose other than the implementation of Grant Activit 6s; 11.8.3. amounts in the charges which a vendor /contractor intends to return to PERFORMING PARTY in the form of cash, goods, services, gifts, intangibles, discounts or any other items of value; 11.8.4. baseline Costs designated by the TCEQ in the Application reflecting the costs that would otherwise be incurred by the PERFORMING PARTY in the normal course of business; or 11.8.5. amounts which are reimbursed by other public sources or for which tax credits or other public financial incentives are, or will be received by the PERFORMING PARTY. 11.9 The PERFORMING PARTY's documentation of expenses is required under Article 20 of these General Conditions. Allowable Costs 11.10 In order to be allowable, costs must be included in the Scope of Work, and must satisfy the requirements of: this Agreement, the UGMS, state agency rules, and all applicable state and federal laws. Consulting (Application Assistance) Fees 11.11 Any fees charged by a consultant for preparation of the Application, either directly or as an addition to the cost basis of the grant- funded vehicle, equipment, or engine, are the sole responsibility of the PERFORMING PARTY or the vendor and are not an allowable cost under this Agreement. All purchase decisions must be based on sound business practices and arm's length bargaining. It is generally considered acceptable for an applicant to accept assistance from a vendor or an agent of a vendor in preparing the Application, as long as any decision by the applicant to purchase the grant- funded vehicle or equipment from that vendor is made independently and meets the other reasonableness provisions in the grant contract. 11.12 Unless otherwise approved in advance by the TCEQ, fees for a third -party consultant hired by the PERFORMING PARTY to manage and administer the grant- funded activities, including coordination of the work and submission of reports and paperwork to the TCEQ, will be considered administrative costs of the PERFORMING PARTY and are not allowable under this Agreement. This provision does not limit the ability of an equipment vendor or installer to include ordinary, reasonable, and necessary operational costs in the price of the vehicle, equipment, or installation services. Preapproval of Costs 11.13 The TCEQ may request additional details regarding costs listed in the Scope of Work and may require that the PERFORMING PARTY obtain pre - approval of specific costs from the TCEQ prior to incurring those costs. Purchase Agreements and Subcontracts 11.14 If requested by the TCEQ, the PERFORMING PARTY must provide the TCEQ with copies of purchase agreements or subcontracts for cost items to be reimbursed under this Agreement for approval, prior to the PERFORMING PARTY entering into a final purchase agreement and /or subcontract. Contract No. 582 -15- 56611 -0978 Page 7 12.3 Except as provided for under Article 12.5 below, to be eligible for reimbursement under this Agreement, a cost must have been incurred and paid by the PERFORMING PARTY prior to claiming reimbursement from TCEQ. A cost may not be considered incurred until the Grant Equipment and /or goods and services included under the cost have been received and accepted by the PERFORMING PARTY. The cost must have been paid by the PERFORMING PARTY prior to claiming reimbursement. Project Costs 12.4 The TCEQ will reimburse the PERFORMING PARTY for no more than the amount specified for each Activity in the Scope of Work. This amount may be adjusted downward in accordance with the Grant Agreement and statutory limits on reimbursement. 12.5 Subject to approval by the TCEQ, the PERFORMING PARTY may assign the payments due from the TCEQ directly to the supplier, subcontractor, financing company, or other entity from which the goods or services were procured or financed by the PERFORMING PARTY. The Notice of Assignment section on the Request for Reimbursement (Form 1) must be properly completed and a Texas Application for Payee Identification Number (Form AP -152) must be completed and submitted with the Request for Reimbursement forms. Under this option, the PERFORMING PARTY must have incurred an obligation to pay Grant Equipment and /or goods and services costs. Sufficient supporting documentation must be submitted, as outlined in the form instructions, to document that the goods or services were received and that the payment amount is owed to the entity designated to receive the payment from the state. Supporting documentation materials, as directed by the TCEQ in the instructions accompanying the forms, shall be attached to the report forms to clearly show that the cost was incurred and, except where the payment is assigned to another entity, paid. 12.6 A final Requn,� for Reimbursement Form, indicating in the appropriate box that it is the final request, shall be submitted to, the -i CE.0.,'iy no later than forty -five (45) days after the date listed in Article 41,1 this Contract. 12.7 All Request for Reimbursement forms shall contain sufficient identification of and information concerning the costs incurred or obligated under a lease or financing agreement and paid so as to enable the TCEQ to ascertain the eligibility of a particular cost and to enable subsequent audit thereof. Supporting documentation materials, as directed by the TCEQ in the instructions accompanying the forms, shall be attached to the report forms to clearly show that the cost was incurred and, except where the payment is assigned to another entity, paid. 12.8 Unless otherwise approved by the TCEQ, all work on the Grant Equipment must be completed and the Grant Equipment ready for operation and delivered in final form before reimbursement will be made on an Activity. The invoices and payment documents provided by the PERFORMING PARTY to support the reimbursement request must document that all work is completed and the Grant Equipment is ready for operation. Replacement Project Costs 12.9 For replacement projects, the TCEQ will reimburse the PERFORMING PARTY for no more than eighty (80) percent of the eligible incremental costs for the purchase of the replacement vehicle or equipment under this Agreement. 12.10 (Reserved for numbering continuity) Repower Project Costs 12.11 For repower projects, the TCEQ will reimburse the PERFORMING PARTY for no more than eighty (80) percent of the eligible incremental costs for the purchase and installation of the repower equipment. Purchase /Payment Documents 12.12 In accordance with the terms of this Agreement, for any purchase, lease, lease- purchase, deferred payment purchase, or other commercial financing arrangement, the PERFORMING PARTY must submit any supporting documentation required or requested by TCEQ. In order to receive payment for each Request for Reimbursement, the PERFORMING PARTY is specifically required to submit the following supporting documents: 12.12.1. canceled checks or wire transfers; 12.12.2. written purchase and lease agreements; 12.12.3. Bills of Sale or Receipts for Delivery; 12.12.4. for deferred payment purchases, statements of account status showing the account in good standing and the equipment is in possession of the PERFORMING PARTY; 12.12.5. Uniform Commercial Code (UCC) Financing Statement (Form UCC1) filing, if applicable. (The UCC allows a creditor to notify other creditors about a debtor's assets used as collateral for a secured transaction by filing a public notice (financing statement) with a particular filing office.); and 12.12.6. other documentation requested by TCEQ in order to support the assertions in the request for reimbursement. 12.13 The TCEQ may waive the requirement for submission of any supporting documents that are not applicable to the PERFORMING PARTY. 12.14 If the requests for reimbursement do not satisfactorily demonstrate the accomplishment of the required tasks or that costs are allowable, eligible, actual, and incurred costs, the TCEQ may reject the request, until such time as the Contract No. 582 -15- 56611 -0978 Page 9 irreparably damaged. Governmental entities may use an established self- insurance program to satisfy this requirement. If requested by the TCEQ, the PERFORMING PARTY shall provide proof of insurance coverage. The TCEQ may approve alternative forms of insurance to comply with this requirement, including evidence of self- insurance. The TCEQ may also waive this requirement, at its sole discretion, for certain types of entities. Previously submitted certificates of insurance coverage may be amended to reflect newly extended coverage. A failure to comply with this requirement is considered a material breach of the Agreement. 15.2 Upon the occurrence of a repairable malfunction of or damage to Grant Equipment which affects emissions reductions during the Activity Life, the PERFORMING PARTY will cause the Grant Equipment to be repaired and restored to the level of Optimum Performance. 15.3 Upon the occurrence of loss, theft, or irreparable damage of Grant Equipment during the Activity Life, the PERFORMING PARTY will cause the lost, stolen, or damaged Grant Equipment to be replaced with similar equipment which achieves the same Optimum Performance or better. The PERFORMING PARTY will cause the replacement Grant Equipment to be in operation no later than 60 consecutive days from the occurrence of loss, theft, or damage, unless the TCEQ expressly agrees to a longer period. Replacement Grant Equipment is subject to all the requirements of the applicable to Grant Equipment contained in this Agreement. 15.4 The PERFORMING PARTY shall fully comply with all requirements of any agreements with third parties that have a security interest or similar interest in the Grant Equipment. Repossession, seizure, or any other event where the PERFORMING PARTY loses possession of the Grant Equipment shall be considered a material breach of this Agreement and shall require the return of grant funds. ARTICLE 16. PERFORMING PARTY'°4.RESPONSIBILITIES TO THE TCEQ, GRANT ACTIVITIES 16.1 The emissions reduction bene-00supporting the award of this grant is based upon the PERFORMIN 3 PARTY's successful performance of the Grant Activities as detailed in the Scope of Work. 16.2 The PERFORMING PARTY agrees that if the reported usage of the Grant Equipment does not meet the requirements listed in the Scope of Work, the TCEQ will be entitled to a return of the grant funds. 16.3 State law and TCEQ policy require that TCEQ remain in contractual privity with the entity operating the Grant Equipment. TCEQ must retain the ability to enforce the usage and reporting commitments contained within the Scope of Work until the termination of this Agreement. Any act by the PERFORMING PARTY that impairs the TCEQ's ability to enforce the usage and reporting commitments, including sale of the Grant Equipment, transfer of the Grant Equipment, loss of the Grant Equipment, sale of the PERFORMING PARTY's business interests, or liquidation of the PERFORMING PARTY's assets (including the Grant Equipment), shall constitute a material breach of this Agreement and shall require the return of grant funds. 16.3.1. The decision by TCEQ on whether to require return of grant funds may include consideration of whether the Grant Equipment will continue to be used in a manner consistent with the Scope of Work. If TCEQ, in its sole discretion, allows the assignment of this Agreement, the PERFORMING PARTY must obtain a Consent to Assignment agreement from TCEQ that will bind the new operator to the terms of this Agreement. 16.4 TCEQ, at its sole discretion, may allow for the return of a pro -rated share of the reimbursement funds reflecting a partial failure to perform the requirements of the Scope of Work. This determination shall depend on factors including, but not limited to, use of the Grant Equipment in a manner that maintained overall program eligibility, full completion of reimbursement and equipment disposition requirements, the PERFORMING PARTY's good -faith efforts to perform the grant activities during the Activity Life, and the PERFORMING PARTY's compliance with notification requirements of this Agreement (i.e., notification before sale of equipment). 16.5 The PERFORMING PARTY agrees to operate the Grant Equipment over the Activity Life no less than the percentage of Annual Usage in the Eligible Counties as specified in the Scope of Work. 16.6 The provisions of Section 386.055, Texas Health and Safety Code, apply to the emissions reductions generated over the Activity Life of each activity funded under this Agreement. The PERFORMING PARTY agrees that the emissions reductions generated by each activity over the Activity Life are transferred to the state implementation plan, or to the PERFORMING PARTY as provided under Section 386.056, Texas Health and Safety Code, and those reductions are permanently retired. ARTICLE 17. PERFORMING PARTY'S RESPONSIBILITIES TO THE TCEQ, PROJECT STATUS, LONG -TERM MONITORING AND REPORTING 17.1 If requested by the TCEQ, the PERFORMING PARTY shall provide information on the status and completion of Grant Activities. The PERFORMING PARTY shall provide such information on the form or in a format requested by the TCEQ, and within a reasonable time frame as may be requested by the TCEQ. 17.2 As a condition of receiving grant funds, the PERFORMING PARTY agrees to monitor the use of Grant Equipment for the Activity Life. Contract No. 582 -15- 56611 -0978 Page 11 18.8 If TCEQ does not use the above default scrappage value, the actual scrappage value or other value received for the old vehicle, equipment, or engine is considered a cost of performing the Grant Activities and as such must satisfy the cost guidelines of Article 11 of the General Conditions of this Agreement. The value received for the vehicle or equipment being replaced must be the result of arms - length bargaining with the entity disposing of the replaced vehicle or equipment and must reflect actual market value. 18.9 If the default value of Section 18.7. of this Article is not used by the TCEQ, the PERFORMING PARTY must list on the financial reporting forms any financial remuneration or other items or services of value received in exchange for the replaced vehicle or equipment including, but not limited to, cash, goods, services (including the services provided by a consultant to assist in preparing and /or submitting a grant application), gifts, intangibles, discounts, insurance proceeds, or any other items of value. ARTICLE 19. PERFORMING PARTY'S RESPONSIBILITIES TO THE TCEQ, INSTALLATION AND USE OF IDENTIFYING MARK, TRACKING DEVICE Identifying Mark 19.1 Upon request by TCEQ, PERFORMING PARTY shall install or permit TCEQ or its contractor to install a prominently placed identifying mark on the equipment identifying it as TERP- funded equipment and containing such other information as TCEQ shall specify. The PERFORMING PARTY may remove the mark upon the expiration of the Activity Life. Tracking Device — Voluntary 19.2. PERFORMING PARTY may install a device for tracking the location and usage of the Grant Equipment drill maintain monitoring services during the Activity t ife. GPS equipment and installation may be considered ail allowat;le cost if the equipment and monitoring services a;+-I obtained from the designated TERP GPS Monitoring Service (l G "JIS) Contractor. Monitoring service charges are not reimbursable expenses. 19.3 With the exception of activities where fuel use is the applicable usage rate factor, installation of a GPS tracking unit from the designated TGMS Contractor and maintenance of monitoring service through the designated TGMS Contractor, regardless of whether the purchase of the GPS tracking unit was reimbursed under the grant, shall waive the requirement of submission of written Monitoring Reports required under General Conditions, Article 17, of this Agreement. 19.4 For activities with fuel use as the usage factor, PERFORMING PARTY shall track and report on fuel use in accordance with General Conditions, Article 17, of this Agreement, in addition to the installation of GPS. 19.5 For voluntary installation of a tracking device, the waiver of the written Monitoring Reports shall continue for such time as the PERFORMING PARTY maintains the GPS monitoring service. Termination of the GPS monitoring for any reason shall reinstate requirements for submission of written Monitoring Reports until such time as the GPS monitoring service is restored. 19.6 PERFORMING PARTY shall not tamper with or disable the GPS equipment or allow others to tamper with or disable the GPS equipment. Evidence of tampering with or disabling the GPS equipment shall reinstate requirements for submission of written Monitoring Reports. 19.7 The PERFORMING PARTY shall review data collected by the GPS monitoring to ensure its accuracy. 19.8 On a semi - annual basis, PERFORMING PARTY shall submit to TCEQ a certification of the accuracy of collected GPS data for each Grant Activity, using a form to be provided by TCEQ. Failure to submit this certification may be considered PERFORMING PARTY's confirmation of the accuracy of the GPS data. If PERFORMING PARTY detects data that it does not consider accurate, PERFORMING PARTY shall immediately notify TCEQ and the TGMS Contractor of the discrepancies. 19.9 If the PERFORMING PARTY voluntarily elects to utilize GPS tracking, the requirements of this section shall apply. Tracking Device — Mandatory as a Condition of Grant Award 19.10 PERFORMING PARTY may be required to obtain and install GPS equipment and monitoring services through the TGMS Contractor as a condition of the grant award. This requirement will be listed in the Scope of Work. 19.11 The provisions of Sections 19.2, 19.3, 19.4, 19.7, and 19.8 of this Article shall apply to mandatory installation of a GPS system as a condition of the grant award. 19.12 PERFORMING PARTY shall not tamper with or disable the GPS equipment or allow others to tamper with or disable the GPS equipment. Evidence of tampering with or disabling the GPS equipment shall constitute a material breach of this Agreement and the PERFORMING PARTY agrees that the TCEQ will be entitled to a return of the reimbursement grant funds. 19.13 For mandatory installation of a GPS system as a condition of the grant award, and unless reporting is suspended by TCEQ or alternative reporting authorized by TCEQ, termination of the GPS monitoring under this Section for any Contract No. 582 -15- 56611 -0978 Page 13 20.6 Subject to the obligations and conditions set forth in this Agreement, title to Grant Equipment (hereafter referred to in this Article as "property ") acquired under this Agreement by the PERFORMING PARTY will vest upon acquisition in the PERFORMING PARTY. 20.7 The PERFORMING PARTY may develop and use its own property management system, which must comply with all applicable federal, state, and local laws, rules, and regulations. If an adequate system for accounting for property owned by the PERFORMING PARTY is not in place or is not used properly, the State Property Accounting Process User's Guide (https:Hfmx.cpa. state. tx .us /fmx/pubs /spal)roc /index.php) issued by the State Comptroller of Public Accounts will be used as a guide for establishing such a system. The property management system used by the PERFORMING PARTY must meet the requirements set forth in this Article. 20.7.1. Property records of Grant Equipment must be maintained that include a description of the property, a serial number or other identification number, the source of property, usage and mileage (separated by location of usage and mileage), who holds title, the acquisition date, and the cost of the property, percentage of TCEQ participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property. 20.7.2. The PERFORMING PARTY will conduct a physical inventory of all Grant Equipment no less frequently than once every two years during the Activity Life and the results of such inventories reconciled with the appropriate property records. Property control procedures utilized by the PERFORMING PARTY must include adequate safeguards to prevent loss, damage, or theft of the Grant Equipment. Accounting Systems 20.8 The PERFORMING PARTY shall have an accounting system which accounts for costs in accordance with generally accepted accounting standards or principles and compiii�,s in all material respects with applicable State law, I!,egulations, and policies relating to accounting standards or princik,ies. The PERFORMING PARTY must account for costs in a manner consistent with such standards or principles. This system shall provide for the identification, accumulation, and segregation of allowable and unallowable project costs among projects. PERFORMING PARTY's Representative 20.9 The PERFORMING PARTY will identify in writing a Project Representative as the person authorized to receive and respond to inquiries and requests from the TCEQ to manage the Grant Activities being performed and to act on behalf of the PERFORMING PARTY. 20.10 The PERFORMING PARTY agrees to make arrangements necessary to ensure that its authorized Project Representative or someone to whom that person has delegated his or her authority is available during regular business hours for consultation with the TCEQ. Written notice of any such delegation will be provided to the TCEQ. Personnel 20.11 PERFORMING PARTY shall provide competent, suitably qualified personnel, whether employees or contractors to implement the Grant Activities as required by the Contract Documents. The PERFORMING PARTY must at all times maintain good discipline and order on the location of Grant Activities. Permits 20.12 Unless otherwise provided in the Contract Documents, the PERFORMING PARTY shall obtain and pay for all transportation, construction, and operating permits and licenses required for this performance of this Agreement. Failure to comply with a permit or administrative order issued by the TCEQ or other state agency may result in a determination, within the sole discretion of the TCEQ, that the best interests of the state are served by withholding reimbursement or by the application of other remedies under this Agreement. Laws and Regulations 20.13 The PERFORMING PARTY shall give all notices and comply in all material respects with all Laws and Regulations applicable to furnishing and performance of the Grant Activities. Except where otherwise expressly required by applicable Laws and Regulations, TCEQ shall not be responsible for monitoring PERFORMING PARTY's compliance with any Laws or Regulations. Data and Publicity 20.14 All data and other information developed under this Agreement shall be furnished, upon request, to the TCEQ and shall be public data and information except to the extent that it is exempted from public access by the Texas Public Information Act, Texas Government Code, Chapter 552. Upon termination of this Agreement, if requested by the TCEQ, all copies of data and information developed under this Agreement, including databases for which the costs of preparation are reimbursed under this Agreement, shall be furnished at no charge to the TCEQ, and shall become the property of the TCEQ. 20.15 The PERFORMING PARTY agrees to notify TCEQ prior to releasing any information to the news media regarding the Grant Activities. The PERFORMING PARTY will acknowledge the financial support of the TCEQ whenever a Grant Activity reimbursed, in whole or part, is publicized or reported in news media or publications. Contract No. 582 -15- 56611 -0978 Page 15 23.1.1. Issue notice of substandard performance or other non - conforming act or omission; 23.1.2. Reject substandard performance and request corrections without charge to the TCEQ; 23.1.3. Request and receive return of any over payments or inappropriate payments; 23.1.4. Reject reimbursement request and suspend payment pending accepted revision of substandard performance or non - conformity; 23.1.5. Reject reimbursement request and withhold and retain all or partial payments for recovery of administrative costs; 23.1.6. Suspend all or part of the Work and /or payments pending accepted revision of substandard performance or non - conformity; 23.1.7. Terminate the contract and demand and receive return of all unexpended funds and repayment of improperly expended funds; 23.1.8. Demand restitution and recover payments where performance is subsequently determined non - conforming; or 23.1.9. Require payment of liquidated damages. 23.2. Liquidated Damages. The parties agree that the actual damages that might be sustained by TCEQ by reason of the breach by the PERFORMING PARTY of its obligations under this Agreement are uncertain and would be difficult of ascertainment. Therefore, the parties agree that reasonable cep nipw nsaation fear such breach wiil be the sum consisting of the total of grant funds paid or obligated by TCEQ, reduced by a percentage rent "lec iinq the laroportion of the tot'a'l Activity Life for which the PERFORMING PARTY has submitted timely and accurate usage reporting meeting the requiw °omor'ats of the Scope of Work prior to the breach. Determination of timely and accurate usage rei' orling is in the sole discretion of TCEQ. The PERFORMING PARTY hereby promises to pay, arid TCEQ hereby agrees to accept, such sure as lequida'te d damages, and not as a penalty, in the event of such breach. 23.3. CumGf;:rtive Remedies. TCEQ may avail itself of any remedy or sanctiow; provided in this contract or in law to recover any losses arising from or caused by the PERFORMING PARTY's substandard performance or any material non- conformity with the contract or the law. The remedies and sanctions available to either party in this contract shall not limit the remedies available to the parties under law. ARTICLE 24. INDEMNIFICATION To the extent permitted by law, the PERFORMING PARTY agrees to indemnify and hold harmless the State of Texas and the TCEQ, including its employees and officers, against and from any and all liability, loss, or dam age arising out of actions of the PERFORMING PARTY, its subcontractors, agents, officers and directors, principals and employees in the performance of this Contract. This paragraph is not intended and shall not be construed to require the PERFORMING PARTY to indemnify or hold harmless the State or the TCEQ for any claims or liabilities resulting from the negligent acts or omissions of the TCEQ or its employees. ARTICLE 25. AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS The Contract Documents may be amended to provide for additions, deletions, and revisions in the Scope of Work or to modify the terms and conditions of this Agreement in one or more of the following ways: a formal Written Amendment or a Minor Change. ARTICLE 26. STANDARDS FOR PERFORMING PARTY'S PERFORMANCE 26.1 In accordance with Texas Government Code Chapter 2261, the TCEQ is required to monitor the PERFORMING PARTY's performance under this Agreement. The PERFORMING PARTY agrees that the standards set forth below are appropriate standards for the PERFORMING PARTY's performance during the Agreement. 26.1.1. Quality and Accuracy. Standard: The PERFORMING PARTY's Grant Activities conform to the requirements of this Agreement. 26.1.2. Timeliness. Standard: The PERFORMING PARTY's Grant Activities are completed on schedule. 26.1.3. Reports and Administrative and Financial Operations. Standard: The PERFORMING PARTY's administrative and financial operations comply with all obligations in law and in this Agreement, including record - keeping, reimbursement requests, audits, allowable costs, payments to subcontractors, and restricted expenditures. 26.1.4. Communication. Standard: The PERFORMING PARTY's accessibility, responsiveness, and cooperativeness with respect to any contract - related concerns communicated by the TCEQ; and including the PERFORMING PARTY's demonstrated relationship with subcontractors. 26.1.5. Other. Standard: Other factors unique to the type of project, as determined by the TCEQ. 26.2 The TCEQ will monitor the PERFORMING PARTY's performance and evaluate the level of compliance with the standards utilizing the performance measures set forth below. 26.2.1. Exceeds Expectations. The PERFORMING PARTY fully complied with all the standards on a consistent basis. 26.2.2, Satisfactory Performance. The PERFORMING PARTY's performance complied with all of the standards, with only typical errors, delays, or other problems that needed to be corrected. Contract No. 582 -15- 56611 -0978 Page 17 27.13 Subject to the provisions of Article 16, General Conditions, the TCEQ and the PERFORMING PARTY each binds itself, its successors, assigns and agents to the other party hereto, successors, assigns and representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 27.14 The parties hereby agree that this Agreement does not waive the State's sovereign immunity relating to suit, liability, and the payment of damages. No TCEQ personnel or agents are authorized to waive sovereign immunity by accepting, on behalf of TCEQ, goods or services which are not required under the Contract Documents or any conforming amendment. The parties further agree that all claims, suits, or obligations arising under or related to this Agreement are subject to and limited to the availability of funds appropriated by the Texas Legislature for that respective claim, suit, or obligation. 27.15 The PERFORMING PARTY acknowledges and agrees that this Agreement has been executed and will be administered in Travis County, Texas. The PERFORMING PARTY also acknowledges and agrees that any permissible cause of action involving this Agreement will arise solely in Travis County. If a legal action related to this claim is permissible and there are two (2) or more counties of proper venue under the rules of mandatory, general, or permissive venue, and one such county is Travis County, the PERFORMING PARTY hereby agrees to venue in Travis County. This provision does not waive the TCEQ's sovereign immunity. 27.16 Any provision of the Contract Documents held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon TCEQ and PERFORMING PARTY, who agree that Contract Documents are reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 27.17 Bankruptcy. If the PERT = ORMING PARTY files for bankruptcy, the PERFORMING -PART, ',shall immediately notify TCEQ in writing accordingto the Notice provisions AND send notification by certified m?il dimcC ly to TCEQ Bankruptcy Program. The PERk.. RMING PARTY shall place TCEQ on distribution list for bankirupiay court documents. The PERFORMING PARTY's notice to the bankruptcy program must include the appropriate contract number(s). The bankruptcy document shall be mailed or delivered to: Texas Commission on Environmental Quality Bankruptcy Program, MC -132 Office of Legal Services P.O. Box 13087 Austin, TX 78711 -3087 — End of General Conditions — Contract No. 582 -15- 56611 -0978 Page 19 AUTHORIZED REPRESENTATIVES / LOCATION OF RECORDS TCEQ Project Representative 1. The individual named below is the TCEQ Project Representative, who is authorized to give and receive communications and directions on behalf of the TCEQ. All communications including all payment requests must be addressed to the TCEQ Project Representative or his or her designee. Mailing Address: Mr. Joe Walton Rebate Grant Program, MC -204 Texas Commission on Environmental Quality Air Quality Division P.O. Box 13087 Austin, TX 78711 -3087 Telephone No.: (512) 239 -4143 Facsimile No.: (512) 239 -6161 PERFORMING PARTY's Authorized Official Physical Address: Mr. Joe Walton Rebate Grant Program, MC -204 Texas Commission on Environmental Quality Air Quality Division 12100 Park 35 Circle, Bldg. F Austin, TX 78753 1. The individual authorized to sign legal documents pn behalf of the PERFORMING PARTY Mailing Address: Mr. Arden V. Kemler City of Denton 1527 South Mayhill Road Denton, TX 76208 Telephone No.: (940) 349 -8044 Facsimile No.: (940) 349 -8057 PERFORMING PARTY's Representative Physical Address Mr. Arden V. Kemler City of Denton 1527 South Mayhill Road Denton, TX 76208 1. The individual named in the original application is the PERFORMING PARTY Project Representative, who is authorized to give and receive communications and directions on behalf of the PERFORMING PARTY. All communications to the PERFORMING PARTY will be addressed to the PERFORMING PARTY Project Representative or his or her designee. Mailing Address: Mr. Nicholas L. Vincent City of Denton 1527 South Mayhill Road Denton, TX 76208 Telephone No.: (940) 349 -8063 Facsimile No.: (940) 349 -8057 Physical Address Mr. Nicholas L. Vincent City of Denton 1527 South Mayhill Road Denton, TX 76208 1. The PERFORMING PARTY agrees to make arrangements necessary to ensure that its authorized Project Representative, or someone to whom that person has delegated his or her authority, is available at all times for consultation with the TCEQ. Written notice of any such delegation will be provided to the TCEQ. Designated Location for Records Access and Review 2. The PERFORMING PARTY designates the physical location identified in the original application for record access and review pursuant to any applicable provision of this contract. — End of Authorized Representatives /Location of Records — Contract No. 582 -15- 56611 -0978 Page 21 SPECIAL CONDITIONS for TEXAS EMISSIONS REDUCTION PLAN REBATE GRANT PROGRAM (TERP Rebate) ARTICLE 1. SPECIAL CONDITIONS The PERFORMING PARTY agrees to these Special Conditions. (This Article is not applicable to this project. The Article number is retained for numbering continuity.} — End of Special Conditions — Contract No. 582 -15- 56611 -0978 Page 23 SCOPE OF WORK for Rebate Grant Program Non -Road Replacement Project The following Scope of Work contains information on the Grant Activity to be conducted and the expenses that will be reimbursed under this Agreement. The information and data provided in the original Application submitted by the PERFORMING PARTY may have been altered after submittal to the TCEQ, to ensure that the information in the Grant Agreement is accurate. The PERFORMING PARTY has reviewed the Scope of Work and, by signing this Agreement, ratifies, adopts, and agrees to all such alterations. ARTICLE 1. ACTIVITY NUMBER 1.1. The Project under this Agreement is assigned the following project number 2015 -03- 0348 -RG. The Activity under this Agreement is assigned the following Activity Number: --- ------ Activity Nu;nber Description Replace 1 Non -Road Off - Highway Tractor, ID: 46P746 1.2 The PERFORMING PARTY shall use the assigned Activity Number when tracking and reporting to the TCEQ on the Activity. ARTICLE 2. ACTIVITY LIFE 2.1 The duration of the Activity Life for Grant Activity performed under the Grant Agreement is listed below. Ac trvity Number Activity LifeYearsj 00.�. _ m .. 7 The Activity Life will commence upon the date disposition is approved by the TCEQ, unless a different start date is specified in writing by the TCEQ. 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U) a) c i 0 -S o � 4 CL 0 co tf N N 7 Y E a � W Y N c L m a3 a) F- (�6 y... O 0 0- C U '0) z c c > c C O CO M dr , E S. LL d � L LL _0 Q VI= W ❑ d CL w CD 0 :3 C) z o W O I co rn 0 (D CD LO N co LO 0 z U (D 0 O U a) (9 m EL ly- W w (.i J a w C� Z_ W m F- Z w _a d w cc; w J p c U (6 , a � � C c W } rn c a� y E o _Q ZE Q• d C N N J c? 4- W O O - C O fl _co 'O d = •�- N C O C W c6 U E O U ❑ � M ll E W ti ui N O ❑_ _ O) 'O �+ C '0 C C y o �j E co o L ., , a w v ai c m CL 6 c O @ cn CD Q W O (9 N > c — W E N 7 Q N E .L. _ m +-� +' 0 N N W co N O N o a CL co co (D c rn 0 Q) n E -0 to O C Q - -t O ca U 7 W +O U Q — o Z a� �- O CD E c o � 0 a H Qaa) o 0 d -C :t:: Z z a co o F .5; ' ' -0 0 CD w > O E > L @ Q E Q a a) 6 a N w O C _ J � ' o LLI O > 7 V F- U V Q Z : p O 04 r c CO CD 0 N E Q 60 C c7 d E 7 Z N C (6 O O) cn C L E T = -0 Z c�a o c� c N � E c O (4 � c O N Q E L � 0 Q O N C d O (D C) N O O Y " U L T C D N N C V O N C L (D (6 d O 0 (6 O Q M O 3. N O U) (n �: a) C O C E a o Qo •� O O O O O > T O O m E O O •� V 0- cn (6 Q c O Vi O N U c L E o N L N O E O C O co W - d -0 O O O C E Z a� 7 C !n O N j O 0- c Q •� r m " E ca � c cn � •� C6 c O c O � E Q O Q � E o0 c E 3 m E c U �X E 0 C O U O O Q o m m U) "= E c CO -° E m C c m o O N N N L L E N •m m 2 CO r 0) co L9 N W 6 z U m C U (9 d RESOLUTION NO. R2015- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE FILING OF AN APPLICATION WITH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY FOR A TEXAS EMISSIONS REDUCTION PLAN REBATE GRANT PROGRAM PROJECT FOR A PORTION OF THE PURCHASE PRICE OF AN ARTICULATED WATER TRUCK, IN ORDER TO REDUCE EMISSIONS IN THE STATE'S NON - ATTAINMENT AREA, BY REPLACING THE CITY'S 1972 CATERPILAR WATER WAGON USED BY THE CITY'S SOLID WASTE AND RECYCLING DEPARTMENT; SAID GRANT TOTALING $112,667; DELEGATING AND AUTHORIZING GEORGE C. CAMPBELL, CITY MANAGER, OR HIS DESIGNEE, TO ACT ON BEHALF OF THE CITY IN ALL OTHER MATTERS THAT ARE RELATED TO THIS PROJECT APPLICATION, PLEDGING THAT IF FUNDING FOR THIS PROJECT IS RECEIVED, THE CITY OF DENTON WILL COMPLY WITH ALL PROJECT REQUIREMENTS OF THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND THE STATE OF TEXAS; PROVIDING FOR RETROACTIVE APPROVAL, CONFIRMATION AND RATIFICATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, on April 3, 2015, the Solid Waste & Recycling ( "SW &R ") Department of the City submitted an application for a Texas Emissions Reduction Plan Rebate Grant ( "TERP ") application to the Texas Commission on Environmental Quality ( "TCEQ "); said application proposed that if granted, that the grant would fund a portion of the purchase price toward the City's purchase of a replacement off -road vehicle; and WHEREAS, the TERP grant program was established in order to reduce emissions in the state's non - attainment areas, and requires that awardees of the TERP grants, permanently decommission their replacement equipment that is listed in the grant application; SW &R has applied for the replacement of its 1972 Caterpillar Water Wagon ( "Water Wagon "), which is in current operation at the City's Landfill; the Water Wagon meets the qualifications for the grant; the grant proceeds are provided to the City to aid in funding the purchase of replacement off -road landfill equipment, which would have lower NOx (nitrous oxide) emission levels and which would achieve the goals outlined within the TCQ grant criteria; and WHEREAS, the SW &R Department received notification from the TCEQ in June 2015, that its grant application and materials submitted during April 2015 were selected to receive a grant totaling $112,667; said grant being classified as a rebate grant, which permits the TCEQ to reimburse the SW &R Department after the purchase of the equipment and delivery has occurred to the SW &R site; and WHEREAS, the S W &R Department has, in order to meet the stringent timeline established by the TCEQ, in applying for the TERP grant; has heretofore applied for and received confirmation that the grant has been granted by the TCEQ; the SW &R Department seeks retroactive approval, confirmation and ratification of its acts; and WHEREAS, the City of Denton, Texas is qualified to apply for TERP grant funds; and 1 WHEREAS, the City Council of the City of Denton has expressed their support and interest regarding the proposed above - referenced solid waste and recycling project; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council of the City of Denton, Texas hereby designates, delegates and authorizes George C. Campbell, City Manager, of the City of Denton, Texas, or his designee, to complete the application and send in the application to request project funding under the Texas Commission on Environmental Quality ( "TCEQ ") "Texas Emissions Reduction Plan Rebate Grant" ( "the "Grant'); and the City Council hereby empowers and authorizes George C. Campbell, City Manager, or his designee, to act on the behalf of the city in all matters, other than the completion and sending in of the project application, that are related to the project application, and any subsequent project contract(s) that may result therefrom. SECTION 2. Should the project be funded, then the City of Denton, Texas shall comply with the requirements of the Texas Commission on Environmental Quality, and the State of Texas. SECTION 3. The project funds and any project - funded equipment and facilities will be used solely for the purposes for which they are intended under the Project. SECTION 4. This resolution shall be retroactively effective, on the 3`d day of April, 2015, upon which date the grant application to the TCEQ was completed and submitted by Arden V. Kemler, General Manager of Solid Waste & Recycling of the City ( "Kemler "); and the required "Grant Agreement" regarding the Texas Emissions Reduction Plan Rebate Grants Program, heretofore executed by Kemler on the 24th day of June, 2015, shall become effective retroactively, and confirmed and ratified on those dates. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY 2 CHRIS WATTS, MAYOR 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 -668, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Solid Waste & Recycling CM /ACM: Jon Fortune AGENDA DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a first amendment to an agreement by and between the City of Denton, Texas and Keep Denton Beautiful, Incorporated, relating to developing programs enhancing the appearance and environment of the City of Denton, Texas; authorizing the expenditure of funds therefor; providing for retroactive approval, confirmation and ratification thereof. BACKGROUND The 2000 contract agreement between nonprofit Keep Denton Beautiful, Inc. (KDB) and the City of Denton is being updated to reflect changes to the City's organizational structure and the City Council's addition of services associated with Denton's Tree Mitigation Fund. A longtime partner of the City, KDB was first started as a Citizens' Task Force 27 years ago, and the organization's current agreement was last updated 15 years ago. The 2000 agreement needs updating in several areas, to accurately reflect the current structure of the KDB and the City, as well as the present nature of the partnership between the two entities. These updates include a revision to KDB's nonprofit mission statement, completed in 2015; transfer of KDB City staff positions in October 2010 from the Parks & Recreation Department to Solid Waste & Recycling; and a change to the "KDB Coordinator" position title referenced in the document, which was changed to "KDB Program Manager" more than 10 years ago. In addition to the above listed changes, the updated agreement document will allow for direct expenditure of funds to support special projects performed from time to time by KDB, to benefit the City and its residents. This change was prompted partly by a request from the City Council in May of this year for KDB to bring forth a proposal for a series of new projects; these particular projects would make use of the City's Tree Mitigation Fund money to offer additional tree planting and distribution programs above and beyond those already provided through KDB's nonprofit program budget. The updated agreement includes language regarding these special project expenditures (such as those proposed from the Tree Fund) to provide for compliance with existing standards of maintenance of records, reporting, and evaluation outlined in the long- standing agreement between KDB and the City. RECOMMENDATION Staff recommends approval of the ordinance and amended agreement, to engage KDB to continue to carry out City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -668, Version: 1 such PRIOR ACTION/REVIEW (Council, Boards, Commissions) March 3, 2015 City Council Work Session May 5, 2015 City Council Work Session EXHIBITS Exhibit l: Ordinance Authorizing Amended Agreement between the City of Denton and Keep Denton Beautiful, Inc. Exhibit 2: First Amended Agreement between the City of Denton and Keep Denton Beautiful, Inc. Respectfully submitted, A. Vance Kemler General Manager, Solid Waste & Recycling Services Prepared by: Lauren Barker Program Manager, Keep Denton Beautiful City of Denton Page 2 of 2 Printed on 8/13/2015 ORDINANCE NO. 2015- AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND KEEP DENTON BEAUTIFUL, INCORPORATED, RELATING TO DEVELOPING PROGRAMS ENHANCING THE APPEARANCE AND ENVIRONMENT OF THE CITY OF DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL, CONFIRMATION AND RATIFICATION THEREOF. WHEREAS, on the 70' day of March, 2000, the City Council enacted Ordinance No. 2000- 087 providing that the City Manager would execute an "Agreement between the City of Denton and Keep Denton Beautiful, Incorporated Relating to Developing Programs Enhancing the Appearance and Environment of Denton ("Agreement ");" and WHEREAS, with the passage of fifteen (15) years, it is now desirable that the above Agreement be amended in furtherance of the programs, as well as for several desired amendments to the programs; NOW THEREFOR THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee is authorized to execute an "Amendment to Agreement between the City of Denton, Texas and Keep Denton Beautiful, Incorporated" (hereafter the "Amendment") relating to developing and funding programs enhancing the appearance and environment of the City of Denton, Texas under the terms and conditions contained in the Amendment, which is attached hereto as Exhibit "A" and incorporated herewith by reference. SECTION 2. The City Manager, or his designee, is authorized to perform the Amendment on behalf of the City and to expend funds for the performance thereof. SECTION 3. This ordinance is hereby retroactively approved, confirmed and ratified, effective as of January 1, 2015. IrASSED AND APPROVED this the day of 2015 ATTEST: JENNIFER WALTERS, CITY SECRETARY BE CHRIS WATTS, MAYOR A � � � � � w � � 2015 FIRST AMENDED AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND KEEP DENTON BEAUTIFUL, INCORPORATED This First Amended Agreement (hereafter the "Amendment") is made and entered into by and between the City of Denton, a Texas municipal corporation, acting by and through its City Manager (hereinafter referred to as "CITY,") and Keep Denton Beautiful, Incorporated, 1117 Riney Road, Denton, Texas 76207, a Texas non-profit corporation (hereinafter referred to as "CONTRACTOR"). WHEREAS, heretofore on the 7th day of March, 2000 the City Council enacted Ordinance No. 2000-087 regarding Keep Denton Beautiful, Incorporated an "Agreement between the City of Denton and Keep Denton Beautiful Incorporated" was entered into on that date as well; with the passage of time it has become necessary and appropriate to amend such Agreement; this is the first amendment to such Agreement; and WHEREAS, the CITY recognizes that the mission of Keep Denton Beautiful, Inc. is "to engage our community in creating a clean and beautiful Denton;" and WHEREAS, the CITY has adopted a budget which includes in-kind support of, as well as a direct expenditure of funds for various Keep Denton Beautiful projects (herafter the "Projects"), from time-to-time.; and WHEREAS, the CITY has now designated the Solid Waste Department as the department of the City that is responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, the CITY wishes to continue to engage CONTRACTOR to continue to carry out such Projects; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. I. TERM This Amendment shall commence effective as of, January 1, 2015 and shall continue annually thereafter, so long as appropriate funds are budgeted for each fiscal year by the City for continuation of this Amendment. 111 Page 1 of 16 CONTRACTOR hereby accepts the responsibility for the performance of all services and activities described in the Work Statement attached hereto as Exhibit "A," in a lawful, satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S designated Executive Officer to be the CONTRACTOR's representative, responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and approved by CITY. The CITY's KDB Program Manager shall be CITY's representative that is responsible for the administration of this Amendment. Ill. CITY'S OBLIGATION A. Limitation of Liability. CITY shall provide CONTRACTOR the sum of $10,000 or such other sum of money as determined by the City's annual budget, in subsequent years, to be expended in accordance with the Project budget. Notwithstanding any other provision of the Amendment, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of the then current budget for CONTRACTOR. For the calendar year 2015 and for each subsequent year, the Project budget may be amended by approval of a budget for applicable fund(s) that specifically earmarks the manner in which the funds so appropriated are to be expended. B. Measure of Liability. In consideration of full and satisfactory services and activities hereunder by CONTRACTOR, CITY shall make payments to CONTRACTOR based on the annual Budget approved by the Council; subject however, to the limitations and provisions set forth in this Section and Section VII of this Amendment. (1) CITY shall not be liable for any cost or portion thereof which: (a) was incurred prior to the beginning date, or after the ending date specified in Section 1; (b) is not incurred in strict accordance with the terms of this Amendment, including all exhibits attached hereto; (c) is not an allowable cost as defined by Section X of this Amendment or the Project budget. (2) CITY shall not be liable for any cost or portion there of which is incurred with respect to any activity of CONTRACTOR which requires prior written approval and authorization from CITY; or after CITY has requested that CONTRACTOR furnish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. Page 2 of 16 (3) CITY shall not be obligated or liable under this Amendment to any party other than to the CONTRACTOR for payment of any monies or provision of any goods or services. C. In -Kind Services. The CITY shall provide staffing, office supplies, office space, and other related expenses to assist and facilitate CONTRACTOR in the accomplishment of the programs and Projects set forth in Exhibit "A;" provided that such expenditure of funds does not exceed the value that such programs and Projects bring to the CITY The determination of the amount of in-kind services provided by the CITY shall be limited generally by the CITY'S budget for such services and specifically by the City Manager's (or his/her designee's) allocation of the manpower and support services available to the Solid Waste Department for its overall operations in the CITY . Such allocation shall not exceed the amount allowed by Article 3, Section 52 of the Texas Constitution. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS CONTRACTOR shall comply with any and all applicable Federal laws, laws of the State of Texas and ordinances of the City of Denton, Texas. V. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Amendment. B. The person(s) signing and executing this Amendment on behalf of CONTRACTOR do/does hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Amendment on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Amendment if there is any dispute as to the legal authority of either CONTRACTOR or the person signing the Amendment to enter into this Amendment. CONTRACTOR is liable to CITY for any money which it has received from CITY for performance of the provisions of this Amendment if CITY has suspended or terminated this Amendment for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Amendment will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Amendment not been executed. Page 3 of 1 6 1"11 CONTRACTOR shall provide, oversee, administer, and carry out all of the activities and services set out in the WORK STATEMENT, which is attached hereto and incorporated herein for all purposes as Exhibit "A," utilizing the funds herein described in Article III." and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the Program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Amendment. No modifications or alterations may be made in the Work Statement without the prior written approval of the City's Representative described in Paragraph 11 herein. a A. Payments to Contractor. The CITY shall pay to the CONTRACTOR the sum of $10,000 (or such other budgeted sums for CONTRACTOR'S calendar year 2015 and for each fiscal year thereafter so long as this Amendment is in force) for services rendered under this Amendment with payment being due on or before January 1 of each calendar year thereafter, in which such sum is budgeted. CONTRACTOR is a calendar year taxpayer. B. Disallowed Costs. Upon termination of this Amendment, should any expense or charge for which payment has been made, be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, CONTRACTOR will refund such amount to CITY within ten (10) working days of a written notice issued to CONTRACTOR, which specifies the amount disallowed and declared due. Disallowed salaries or wages must be returned to CITY in the following format: (1) A cashier's check for the net aggregate amount payable to the City of Denton; and (2) A listing showing the Social Security number, full name, last known complete address and the amount owed to each person involved. Refunds of disallowed costs may not be made from these or any other funds received from or through CITY. VIII. WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and ftirnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. Page 4 of 16 B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business, or with the provisions of any existing indenture or other agreement of CONTRACTOR. E. CONTRACTOR has the power to enter into this Amendment and accept payment hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Amendment. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes, not delinquent, except as disclosed and shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment by the CONTRACTOR. Ix. COVENANTS A. During the period of this Amendment, the CONTRACTOR shall not, without the prior written consent of the City's authorized representative referenced in Paragraph H: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre- existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Amendment and with respect to which CITY has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property Page 5 of 16 purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. Me W, . � � Funds shall only be used in the performance of and in compliance with this Amendment and in conformance with the standards and provisions of Exhibits "N' attached hereto. X1. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Amendment, in compliance with the provisions of Exhibit "B," attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR!s record system and financial accounting system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Amendment or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Amendment for a period of three (3) years from the date of expenditure in order to permit CITY to timely audit such materials, should it so choose. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Amendment. D. At any reasonable time and as often as CITY may deem necessary, the CONTRACTOR shall make available to CITY all of its records and shall permit CITY to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said CITY representatives. 9 At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Amendment. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such audit, to the Assistant City Manager of Finance. W.�101 XIV. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR!s performance under this Agreement from time-to-time. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and Objectives, which are attached hereto as Exhibit "A," as well as to other provisions of this Amendment. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of recordkeeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its legal, monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY stafE E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR!s funding or regulatory bodies to CITY within ten (10) working days of receipt by CONTRACTOR. Xv. DIRECTORS' MEETINGS During the term of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be received by the CITY at least seventy-two (72) hours in advance of said meeting, in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the CONTRACTOR'S Board of Directors meetings. Minutes of all meetings of CONTRACTOR!s governing body shall be available to CITY within thirty (30) working days of approval. A. CONTRACTOR shall observe sound business practices with respect to providing Page 7 of 16 such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. If the premises on and in which the activities described in Exhibit "A" are conducted, are not owned or leased by the City, and the employees conducting these activities are not employed by CITY, then CONTRACTOR shall be covered by premises liability insurance, commonly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon the reasonable written request of CONTRACTOR, CITY may, at the sole discretion of its Risk Manager, approve alternate insurance coverage arrangements, in writing. C. CONTRACTOR will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants not employed by CITY, if applicable. D. CONTRACTOR shall maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTORs files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that CITY and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. The CONTRACTOR shall be obligated to obtain replacement insurance coverage and provide evidence of same to the CITY Risk Manager. A. CONTRACTOR shall comply with CITY's policies in regard to the Federal Equal Employment and Affirmative Action provisions, or submit an alternate plan within thirty (30) days of the effective date of this Amendment. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. D. In the event of CONTRACTOR!s non-compliance with the non-discrimination requirements, CITY, at its sole option, may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from firther contracts with CITY. Page 8 of 16 XVIII. PERSONNEL POLICIES CONTRACTOR's employment policies shall be be no more liberal than the CITY'S personnel and Human Resources policies. A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Amendment. CONTRACTOR further covenants that in the performance of this Amendment, that no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in, or use his position for a purpose that is, or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Amendment which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Amendment or the proceeds thereof. XX NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR!s governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step- parent, step-child, half-brother and half-sister. XXI. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation Page 9 of 16 B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to promote in any manner any sectarian or religious facility or activity. XXII. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Amendment shall be by a further written amendment, executed by duly-authorized signatories both parties, except when the terms of this Amendment expressly provide that another method shall be used. For purposes of this Amendment the duly-authorized signatories are the KDB Program Manager for the CITY and the Board President regarding the CONTRACTOR. In the event that additional monies are requested by CONTRACTOR, then the CITY'S authorized signatory shall be instead, the City Manager. B. CONTRACTOR may not make transfers between or among approved line-items within budget categories set forth in Exhibit "B" without the prior written approval of CITY. CONTRACTOR shall request, in writing, any budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Amendment. In addition, CONTRACTOR expressly understands that budget revisions cannot significantly change the nature, intent, or scope of the Program funded under this Amendment. C. CONTRACTOR shall submit revised budget and program information, whenever the level of funding for CONTRACTOR or the Program(s) described herein is/are altered according to the total levels contained in any Council approved budget. D. It is understood and agreed by CITY and CONTRACTOR that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Amendment. Any such modifications are to be automatically incorporated into this Amendment without any written amendment hereto, and shall become a part of the Amendment on the effective date specified by the law or regulation. E. CITY may, from time to time during the term of the Amendment, request changes in Exhibit "A," which may include an increase or decrease in the amount of CONTRACTOR!s compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget shall require the prior written approval of CITY. G. CONTRACTOR agrees to notify CITY of any proposed change in physical location for work performed under this Amendment, at least thirty (30) calendar days in advance of the change. H. CONTRACTOR shall promptly notify CITY of any changes in personnel or governing board composition. Page 10 of 1 6 1. It is expressly understood that neither the performance of Exhibit "A" for any program contracted hereunder, nor the transfer of funds between or among said Programs will be permitted. XXV. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, require the CONTRACTOR to refund all unused funds. Such notice may be given personally and by certified mail to the Board President of CONTRACTOR. The notice shall set forth the specific basis of any default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all returned eligible funds, withheld or impounded. If, however, CITY determines that CONTRACTOR has not come into compliance, the provisions of Section XXVI may be effectuated. XXVI. TERMINATION A. CITY may terminate this Agreement with cause for any of the following reasons: (1) CONTRACTOWs failure to attain compliance during any prescribed period of suspension as provided in Section XXV. (2) CONTRACTOR!s violation of covenants, agreements or guarantees of this Amendment. (3) A finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Amendment; (b) has allocated inventory to this Amendment substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Amendment in the ordinary course of business. (4) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOWs property, or the institution of bankruptcy, reorganization, rearrangement Page 11 of 16 of or liquidation proceedings by or against CONTRACTOR. (5) CONTRACTOR!s inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV of this Agreement. (6) The commission by CONTRACTOR of an act of bankruptcy. (7) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound, or shall be bound under the terms of the Amendment. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate this Amendment, and the effective date of termination thereof. Simultaneous notice of pending termination may be made to the other funding sources specified in Exhibit 1113.11 B. CITY may terminate this Amendment for convenience, at any time upon providing CONTRACTOR thirty (30) days written notice of termination. C. CONTRACTOR may terminate this Amendment in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Amendment, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. D. CONTRACTOR may terminate this Amendment upon the dissolution of CONTRACTOR!s organization not occasioned by a breach of this Amendment. E. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Amendment. CITY shall not be liable to CONTRACTOR or CONTRACTOR!s creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date. F. Notwithstanding any exercise by CITY of its right of suspension or tennination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Amendment by CONTRACTOR, and CITY may withhold any reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY from CONTRACTOR is agreed -upon or is otherwise determined. In the event that any claim, demand, suit or other action is made or brought by any person(s), firm, corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or Page 12 of 1 6 other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by certified mail. CONTRACTOR shall also provide to CITY at the same time a true and correct copy of the pleadings or documents served upon it by the opposing party. XXVIII. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all. claims, suits, causes of action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. A. CONTRACTOR shall not transfer, pledge or otherwise assign this Amendment or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Amendment is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Amendment constitute, or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Amendment, together with the referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Amendment, whether written or oral, shall have no force or effect whatsoever; nor shall any agreement, assertion, statement, understanding, or Page 13 of 1 6 other commitment occurring during the term of this Amendment, or subsequent thereto, have any legal force or effect whatsoever, unless property executed in writing, and if appropriate, recorded as a further amendment of this Amendment. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Amendment or its governing rules, codes, laws, ordinances or regulations, CITY will have the final authority to render or to secure an interpretation. F. For purposes of this Amendment, all official communications and notices among the parties shall be deemed made if sent postage paid, band-delivered, sent by electronic mail, or faxed to the parties and address set forth below: City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 TO CONTRACTOR: President of the Board of Directors Keep Denton Beautiful, Inc. 1117 Riney Road Denton, Texas 76207 G. This Amendment shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Amendment shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, this amendment is executed on this the day of , 2015, but to be effective from and after January t, 2015. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation 0 ATTEST: JENNIFER WALTERS, CITY SECRETARY am APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: M- Board Secretary KEEP DENTON BEAUTIFUL, INC. A Texas Non-Profit Corporation By: psi PRESIDEN Page 15 of 16 1*114:11 Keep Denton Beautiful Work Statement Keep Denton Beautiful, Inc. ("KDB") develops and makes recommendations on issues related to the appearance and environment of Denton, Texas. KDB organizes and implements programs, projects, and educational opportunities in the areas of litter abatement, community beautification and urban forestry, to include without limitation, proposed public and private property tree planting programs such as (1) Tree Giveaways to the Community and Businesses; (2) Public and Youth Education functions; and (3) Arbor Day celebration activities.. KDB is an affiliate organization of the Keep America Beautiful, Inc. ( "K AB ") national program, and complies with all KAB standards to remain in good standing. Page 16 of 16 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -724, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling CM /ACM: Jon Fortune DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, approving a tree rebate program for the public purpose of increasing the tree canopy within the City; providing the authority for issuance of tree rebates; committing proceeds from the tree fund; and providing an effective date. BACKGROUND The City of Denton wishes to increase tree canopy within the city limits through use of tree fund proceeds. The tree rebate program was proposed to the City Council by Keep Denton Beautiful as a component of a larger tree planting program. Environmental Services and Sustainability has helped model the program after the GreenSense Rebate program and will manage the tree rebate component. Tree rebates of fifty dollars per tree for qualifying trees and a part -time intern position will be funded from the tree fund proceeds. RECOMMENDATION Staff recommends approval of tree rebate program ordinance. PRIOR ACTION/REVIEW September 16, 2014 January 13, 2015 March 3, 2015 EXHIBITS City Council Work Session City Council Work Session City Council Work Session Exhibit 1 Ordinance Exhibit 2 Tree Rebate Program Application Respectfully submitted: Jon Fortune Assistant City Manager City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -724, Version: 1 Prepared by: Katherine Barnett Sustainability and Special Projects Administrator City of Denton Page 2 of 2 Printed on 8/13/2015 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A TREE REBATE PROGRAM FOR THE PUBLIC PURPOSE OF INCREASING THE TREE CANOPY WITHIN THE CITY; PROVIDING THE AUTHORITY FOR ISSUANCE OF TREE REBATES; COMMITTING PROCEEDS FROM THE TREE FUND; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Tree Fund is administered by the City as a fund for tree mitigation, which is used to purchase, plant and maintain trees in the City and to educate citizens and developers on the benefits and value of trees; and WHEREAS, the City Council finds that increasing the tree canopy fulfills a public purpose by providing energy savings through shading buildings and decreasing ambient temperatures, filtering pollution out of the air, helping to reduce greenhouse gases, helping to manage storm water, and generally providing aesthetic benefits and increased property values within the City; and WHEREAS, the City Council finds that in order to achieve its goal of increasing the tree canopy within the City, it is necessary to allow for and fund programs that further the goal of planting and maintenance of trees; and WHEREAS, the City of Denton has created a Tree Rebate Program to be provided to applicants on a first come -first served basis, which allows for reimbursement for the purchase of trees in the form of a credit on the applicant's City of Denton Utility Service Bill, in order to encourage the planting of new trees within the city limits; and WHEREAS, the City Council hereby finds that the proposed rules and procedures for the Tree Rebate Program as reflected in the Tree Rebate Program Application, attached as Exhibit "A" hereto and incorporated by reference as if set forth at length herein, provide adequate retention of control over the funds to ensure that the above public purpose is accomplished in order to protect the public's investment and to insure the City receives a return benefit; and WHEREAS, the City Council approved Ordinance , authorizing an amendment to Section 35.13.7.A.7.e of the Denton Development Code, amending use of the Tree Fund deposits in order to accommodate this public purpose; and WHEREAS, the City Council of the City of Denton desires to approve use of the proceeds from the tree fund for the City's Tree Rebate Program outlined in Exhibit "A ", as adopted in the City's annual budget, and has determined that the use of proceeds from the tree fund for this program is in the best interest of the health, safety, morals, and general welfare of the City of Denton and should be granted as set forth herein: 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 Tree Rebate Program, with the rules and procedures outlined in Exhibit "A ", including the cost of adequate staffing, is hereby approved to be funded with proceeds from the Tree Fund, up to the amount(s) as adopted in the City's annual budget for any given year. SECTION 3. The Tree Rebate Program shall be administered by the Department of Environmental Services and Sustainability and the Director thereof, or the Director's designee, shall hereby have the authority to issue such rebates on City of Denton Utility Service Bills for the purposes of and in conformity with the Tree Rebate Program. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -734, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, approving certain tree adoption programs for the public purpose of increasing the tree canopy within the City; committing proceeds from the tree fund; and providing an effective date. BACKGROUND This ordinance is the result of City Council direction for Keep Denton Beautiful (KDB) to proceed with developing a comprehensive tree planting program initiative, as well as a tree rebate program, to utilize Tree Mitigation Fund dollars and encourage the planting of trees on private property in the City. This initiative would be achieved by supplementing existing KDB tree programs and creating new programs to support tree planting and tree care. The proposal for this initiative consists of the following KDB- administered programs: Small -Scale Tree Giveaway Program a. Free trees will be distributed to attendees at KDB's Denton Redbud Festival, the official Arbor Day celebration for Denton. (beginning Spring 2016) b. KDB will partner with neighborhood groups and community organizations to help these groups host their own small -scale tree giveaway events. (beginning Fall 2016) 2. Business - Targeted Giveaway Program (beginning Fall 2015) A giveaway program targeting Denton businesses who commit to plant trees in public view on property that has a commercial use, or is located in a commercially zoned district within the City of Denton. 3. Community Education Program a. Children's Arbor Day School Campus Plantings (beginning Spring 2016), offered as an enhancement to KDB's existing (and separately funded) Children's Arbor Day Program, public and private schools in the City of Denton and Denton ISD may request up to (2) 3 -inch caliper trees to be planted on the school campus. b. Citizen Forester Training (beginning Fall 2015), provided to train individuals in the community to assist with tree care and public education duties associated with the tree planting initiative programs. A fourth program - the Tree Rebate Program - will be operated by the City of Denton, and the terms of this City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -734, Version: 1 program will be outlined in a separate ordinance document. Central to each of these programs will be the ability to 1) leverage existing KDB and community resources such as labor, materials or funding, thereby allowing a greater number of trees to be planted at a reduced cost (average of $69 per tree); and 2) track the health and maintenance of trees to monitor survival rates over time. In all, the programs outlined under this initiative will result in the planting of up to 12,160 trees over a 3 year period. RECOMMENDATION The Keep Denton Beautiful Board of Directors approved an amendment to KDB's agreement with the City of Denton to allow for these programs, and also approved a resolution establishing guidelines for the above - listed programs (Exhibits 2 and 3, respectively). The Planning and Zoning Commission recommended approval of a necessary amendment to the Tree Code in order to allow for the use of Tree Fund dollars to support these programs (4 -0). Staff recommends approval of this ordinance to fulfill Council direction regarding the use of Tree Fund dollars for expansion of current tree distribution and tree planting programs provided by Keep Denton Beautiful. ESTIMATED SCHEDULE OF PROJECT Pending approval by the City Council, programs will begin October 1, 2015. PRIOR ACTION/REVIEW (Council. Boards. Commissions March 3, 2015 City Council Work Session May 5, 2015 City Council Work Session August 3, 2015 Keep Denton Beautiful Board of Directors approved (11 -0) August 5, 2015 Planning and Zoning Commission recommended approval (4 -0) EXHIBITS Exhibit 1- KDB Giveaway Program Ordinance Exhibit 2- 2015 Amendment to Keep Denton Beautiful Agreement Exhibit 3- KDB Board Resolution for New Tree Fund- Supported Programs Respectfully submitted: Vance Kemler General Manager, Solid Waste & Recycling Prepared by: Lauren Barker Program Manager, Keep Denton Beautiful City of Denton Page 2 of 2 Printed on 8/13/2015 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING CERTAIN TREE ADOPTION PROGRAMS FOR THE PUBLIC PURPOSE OF INCREASING THE TREE CANOPY WITHIN THE CITY; AUTHORIZING THE EXPEDITURE OF PROCEEDS FROM THE TREE FUND; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Tree Fund is administered by the City as a fund for tree mitigation, which is used to purchase, plant and maintain trees in the City and to educate citizens and developers on the benefits and value of trees; and WHEREAS, the City Council finds that increasing the tree canopy fulfills a public purpose by providing energy savings through shading buildings and decreasing ambient temperatures, filtering pollution out of the air, helping to reduce greenhouse gases, helping to manage storm water, and generally providing aesthetic benefits and increased property values within the City; and WHEREAS, the City Council finds that in order to achieve its goal of increasing the tree canopy within the City, it is necessary to allow for and fund programs that further the goal of planting and maintenance of trees; and WHEREAS, the City and Keep Denton Beautiful, Inc., a Texas Non - profit corporation, ( "KDB ") have an agreement whereby the City adopts in its budget in -kind support as well as a direct expenditure of funds for KDB programs in order to support KDB's mission "to engage our community in creating a clean and beautiful Denton," which said agreement is attached as Exhibit "A" hereto and incorporated by reference as if set forth at length herein; and WHEREAS, KDB's board of directors passed a resolution on July 29, 2015, which sets forth specific rules and procedures for new programs consisting of the provision of trees for adoption and tree care education, attached as Exhibit "B" hereto and incorporated by reference as if set forth herein ( "Tree Adoption Programs "), in support of its mission; and WHEREAS, the City Council hereby finds that the proposed rules and procedures for the Tree Adoption Programs provide adequate retention of control over the funds to ensure that the above public purpose is accomplished in order to protect the public's investment and to insure the City receives a return benefit; and WHEREAS, the City Council on approved an amendment to Section 35.13.7.A.7.e of the Denton Development Code, amending use of the Tree Fund deposits in order to accommodate this public purpose; and WHEREAS, the City Council of the City of Denton desires to approve use of the proceeds from the tree fund for the Tree Adoption Programs outlined in Exhibit B, as adopted in the City's annual budget, and has determined that the use of proceeds for such programs is in the best interest of the health, safety, morals, and general welfare of the City of Denton and should be granted as set forth herein: 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 City Manager or his designee, are hereby authorized to expend funds from the Tree Fund up to the amount(s) as adopted in the City's annual budget for any given year in order to achieve the public purpose of increasing the City's tree canopy. The Tree Adoption Programs set forth in Exhibit "B ", including the cost of adequate staffing, are hereby approved to be funded with proceeds from the Tree Fund, SECTION 3. The Tree Adoption Programs referenced above shall be administered by KDB with oversight by City personnel, and KDB shall abide by all agreements, rules, and procedures as outlined in Exhibits "A" and "B" attached hereto. 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 By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By:t ` �� EXHIBIT A (FIRST AMENDED AGREEMENT BETWEEN THE CITY AND KDB) 2015 FIRST AMENDED AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND KEEP DENTON BEAUTIFUL INCORPORATED This First Amended Agreement (hereafter the "Amendment ") is made and entered into by and between the City of Denton, a Texas municipal corporation, acting by and through its City Manager (hereinafter referred to as "CITY, ") and Keep Denton Beautiful, Incorporated, 1117 Riney Road, Denton, Texas 76207, a Texas non - profit corporation (hereinafter referred to as "CONTRACTOR "). WHEREAS, heretofore on the 71h day of March, 2000 the City Council enacted Ordinance No. 2000 -087 regarding Keep Denton Beautiful, Incorporated an "Agreement between the City of Denton and Keep Denton Beautiful Incorporated" was entered into on that date as well; with the passage of time it has become necessary and appropriate to amend such Agreement; this is the first amendment to such Agreement; and WHEREAS, the CITY recognizes that the mission of Keep Denton Beautiful, Inc. is "to engage our community in creating a clean and beautiful Denton;" and WHEREAS, the CITY has adopted a budget which includes in -kind support of, as well as a direct expenditure of funds for various Keep Denton Beautiful projects (herafter the "Projects "), from time -to- time.; and WHEREAS, the CITY has now designated the Solid Waste Department as the department of the City that is responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, the CITY wishes to continue to engage CONTRACTOR to continue to carry out such Projects; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. I. TERM This Amendment shall commence effective as of, January 1, 2015 and shall continue annually thereafter, so long as appropriate funds are budgeted for each fiscal year by the City for continuation of this Amendment. II. Page 1 of 16 RESPONSIBILITIES CONTRACTOR hereby accepts the responsibility for the performance of all services and activities described in the Work Statement attached hereto as Exhibit "A," in a lawful, satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S designated Executive Officer to be the CONTRACTOR's representative, responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and approved by CITY. The CITY's KDB Program Manager shall be CITY's representative that is responsible for the administration of this Amendment. III. CITY'S OBLIGATION A. Limitation of Liability. CITY shall provide CONTRACTOR the sum of $10,000 or such other sum of money as determined by the City's annual budget, in subsequent years, to be expended in accordance with the Project budget. Notwithstanding any other provision of the Amendment, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of the then current budget for CONTRACTOR. For the calendar year 2015 and for each subsequent year, the Project budget may be amended by approval of a budget for applicable f ind(s) that specifically earmarks the manner in which the funds so appropriated are to be expended. . B. Measure of Liability. In consideration of full and satisfactory services and activities hereunder by CONTRACTOR, CITY shall make payments to CONTRACTOR based on the annual Budget approved by the Council; subject however, to the limitations and provisions set forth in this Section and Section VII of this Amendment. (1) CITY shall not be liable for any cost or portion thereof which: (a) was incurred prior to the beginning date, or after the ending date specified in Section I; (b) is not incurred in strict accordance with the terms of this Amendment, including all exhibits attached hereto; (c) is not an allowable cost as defined by Section X of this Amendment or the Project budget. (2) CITY shall not be liable for any cost or portion there of which is incurred with respect to any activity of CONTRACTOR which requires prior written approval and authorization from CITY; or after CITY has requested that CONTRACTOR furnish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. Page 2 of 16 (3) CITY shall not be obligated or liable under this Amendment to any party other than to the CONTRACTOR for payment of any monies or provision of any goods or services. C. In -Kind Services. The CITY shall provide staffing, office supplies, office space, and other related expenses to assist and facilitate CONTRACTOR in the accomplishment of the programs and Projects set forth in Exhibit "A;" provided that such expenditure of funds does not exceed the value that such programs and Projects bring to the CITY The determination of the amount of in -kind services provided by the CITY shall be limited generally by the CITY'S budget for such services and specifically by the City Manager's (or his/her designee's) allocation of the manpower and support services available to the Solid Waste Department for its overall operations in the CITY . Such allocation shall not exceed the amount allowed by Article 3, Section 52 of the Texas Constitution. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS CONTRACTOR shall comply with any and all applicable Federal laws, laws of the State of Texas and ordinances of the City of Denton, Texas. V. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Amendment. B. The person(s) signing and executing this Amendment on behalf of CONTRACTOR do /does hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Amendment on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Amendment if there is any dispute as to the legal authority of either CONTRACTOR or the person signing the Amendment to enter into this Amendment. CONTRACTOR is liable to CITY for any money which it has received from CITY for performance of the provisions of this Amendment if CITY has suspended or terminated this Amendment for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Amendment will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Amendment not been executed. Page 3 of 16 VI. PERFORMANCE BY CONTRACTOR CONTRACTOR shall provide, oversee, administer, and carry out all of the activities and services set out in the WORK STATEMENT, which is attached hereto and incorporated herein for all purposes as Exhibit "A," utilizing the funds herein described in Article III." and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the Program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Amendment. No modifications or alterations may be made in the Work Statement without the prior written approval of the City's Representative described in Paragraph II herein. VII. PAYMENTS TO CONTRACTOR A. Payments to Contractor. The CITY shall pay to the CONTRACTOR the sum of $10,000 (or such other budgeted sums for CONTRACTOR'S calendar year 2015 and for each fiscal year thereafter so long as this Amendment is in force) for services rendered under this Amendment with payment being due on or before January 1 of each calendar year thereafter, in which such sum is budgeted. CONTRACTOR is a calendar year taxpayer. B. Disallowed Costs. Upon termination of this Amendment, should any expense or charge for which payment has been made, be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, CONTRACTOR will refund such amount to CITY within ten (10) working days of a written notice issued to CONTRACTOR, which specifies the amount disallowed and declared due. Disallowed salaries or wages must be returned to CITY in the following format: (1) A cashier's check for the net aggregate amount payable to the City of Denton; and (2) A listing showing the Social Security number, full name, last known complete address and the amount owed to each person involved. Refunds of disallowed costs may not be made from these or any other funds received from or through CITY. VIII. WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. Page 4 of 16 B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business, or with the provisions of any existing indenture or other agreement of CONTRACTOR. E. CONTRACTOR has the power to enter into this Amendment and accept payment hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Amendment. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes, not delinquent, except as disclosed and shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment by the CONTRACTOR. IX. COVENANTS A. During the period of this Amendment, the CONTRACTOR shall not, without the prior written consent of the City's authorized representative referenced in Paragraph II: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre- existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Amendment and with respect to which CITY has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property Page 5 of 16 purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. X. ALLOWABLE USES Funds shall only be used in the performance of and in compliance with this Amendment and in conformance with the standards and provisions of Exhibits "A" attached hereto. XI. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Amendment, in compliance with the provisions of Exhibit "B," attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR's record system and financial accounting system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Amendment or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Amendment for a period of three (3) years from the date of expenditure in order to permit CITY to timely audit such materials, should it so choose. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Amendment. D. At any reasonable time and as often as CITY may deem necessary, the CONTRACTOR shall make available to CITY all of its records and shall permit CITY to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said CITY representatives. XIII. REPORTS AND INFORMATION At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Amendment. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such audit, to the Assistant City Manager of Finance. Page 6 of 16 XIV. MONITORING AND EVALUATION A. CITY shall perform on -site monitoring of CONTRACTOR's performance under this Agreement from time -to -time. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and Objectives, which are attached hereto as Exhibit "A," as well as to other provisions of this Amendment. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of recordkeeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its legal, monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any. of CONTRACTOR's funding or regulatory bodies to CITY within ten (10) working days of receipt by CONTRACTOR. XV. DIRECTORS' MEETINGS During the term of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be received by the CITY at least seventy -two (72) hours in advance of said meeting, in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the CONTRACTOR'S Board of Directors meetings. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY within thirty (30) working days of approval. XVI. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing Page 7 of 16 such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. If the premises on and in which the activities described in Exhibit "A" are conducted, are not owned or leased by the City, and the employees conducting these activities are not employed by CITY, then CONTRACTOR shall be covered by premises liability insurance, commonly referred to as "Owner /Tenant" coverage with CITY named as an additional insured. Upon the reasonable written request of CONTRACTOR, CITY may, at the sole discretion of its Risk Manager, approve alternate insurance coverage arrangements, in writing. C. CONTRACTOR will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants not employed by CITY, if applicable. D. CONTRACTOR shall maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that CITY and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. The CONTRACTOR shall be obligated to obtain replacement insurance coverage and provide evidence of same to the CITY Risk Manager. XVII. EQUAL OPPORTUNITY A. CONTRACTOR shall comply with CITY's policies in regard to the Federal Equal Employment and Affirmative Action provisions, or submit an alternate plan within thirty (30) days of the effective date of this Amendment. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. D. In the event of CONTRACTOR's non - compliance with the non - discrimination requirements, CITY, at its sole option, may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. Page 8 of 16 XVIII. PERSONNEL POLICIES CONTRACTOR's employment policies shall be be no more liberal than the CITY'S personnel and Human Resources policies. XIX. CONFLICT OF INTEREST A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Amendment. CONTRACTOR further covenants that in the performance of this Amendment, that no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in, or use his position for a purpose that is, or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Amendment which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Amendment or the proceeds thereof. XX. NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in -laws, aunt, uncle, nephew, niece, step- parent, step - child, half - brother and half - sister. XXI. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation Page 9 of 16 B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to promote in any manner any sectarian or religious facility or activity. XXII. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Amendment shall be by a further written amendment, executed by duly- authorized signatories both parties, except when the terms of this Amendment expressly provide that another method shall be used. For purposes of this Amendment the duly- authorized signatories are the KDB Program Manager for the CITY and the Board President regarding the CONTRACTOR. In the event that additional monies are requested by CONTRACTOR, then the CITY'S authorized signatory shall be instead, the City Manager. B. CONTRACTOR may not make transfers between or among approved line -items within budget categories set forth in Exhibit `B" without the prior written approval of CITY. CONTRACTOR shall request, in writing, any budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Amendment. In addition, CONTRACTOR expressly understands that budget revisions cannot significantly change the nature, intent, or scope of the Program funded under this Amendment. C. CONTRACTOR shall submit revised budget and program information, whenever the level of funding for CONTRACTOR or the Program(s) described herein is /are altered according to the total levels contained in any Council approved budget. D. It is understood and agreed by CITY and CONTRACTOR that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Amendment. Any such modifications are to be automatically incorporated into this Amendment without any written amendment hereto, and shall become a part of the Amendment on the effective date specified by the law or regulation. E. CITY may, from time to time during the term of the Amendment, request changes in Exhibit "A," which may include an increase or decrease in the amount of CONTRACTOR's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget shall require the prior written approval of CITY. G. CONTRACTOR agrees to notify CITY of any proposed change in physical location for work performed under this Amendment, at least thirty (30) calendar days in advance of the change. H. CONTRACTOR shall promptly notify CITY of any changes in personnel or governing board composition. Page 10 of 16 I. It is expressly understood that neither the performance of Exhibit "A" for any program contracted hereunder, nor the transfer of funds between or among said Programs will be permitted. XXV. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, require the CONTRACTOR to refund all unused funds. Such notice may be given personally and by certified mail to the Board President of CONTRACTOR. The notice shall set forth the specific basis of any default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all returned eligible funds, withheld or impounded. If, however, CITY determines that CONTRACTOR has not come into compliance, the provisions of Section XXVI may be effectuated. XXVI. TERMINATION A. CITY may terminate this Agreement with cause for any of the following reasons: (1) CONTRACTOR's failure to attain compliance during any prescribed period of suspension as provided in Section XXV. (2) CONTRACTOR's violation of covenants, agreements or guarantees of this Amendment. (3) A finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Amendment; (b) has allocated inventory to this Amendment substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Amendment in the ordinary course of business. (4) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOR's property, or the institution of bankruptcy, reorganization, rearrangement Page 1 I of 16 of or liquidation proceedings by or against CONTRACTOR. (5) CONTRACTOR's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV of this Agreement. (6) The commission by CONTRACTOR of an act of bankruptcy. (7) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound, or shall be bound under the terms of the Amendment. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate this Amendment, and the effective date of termination thereof. Simultaneous notice of pending termination may be made to the other funding sources specified in Exhibit `B." B. CITY may terminate this Amendment for convenience, at any time upon providing CONTRACTOR thirty (30) days written notice of termination. C. CONTRACTOR may terminate this Amendment in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Amendment, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. D. CONTRACTOR may terminate this Amendment upon the dissolution of CONTRACTOR's organization not occasioned by a breach of this Amendment. E. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Amendment. CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date. F. Notwithstanding any exercise by CITY of its right of suspension or termination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Amendment by CONTRACTOR, and CITY may withhold any reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY from CONTRACTOR is agreed upon or is otherwise determined. XXVII. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm, corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or Page 12 of 16 other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by certified mail. CONTRACTOR shall also provide to CITY at the same time a true and correct copy of the pleadings or documents served upon it by the opposing party. XXVIII. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. XXIX. MISCELLANEOUS A. CONTRACTOR shall not transfer, pledge or otherwise assign this Amendment or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Amendment is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Amendment constitute, or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Amendment, together with the referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Amendment, whether written or oral, shall have no force or effect whatsoever; nor shall any agreement, assertion, statement, understanding, or Page 13 of 16 other commitment occurring during the term of this Amendment, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as a further amendment of this Amendment. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Amendment or its governing rules, codes, laws, ordinances or regulations, CITY will have the final authority to render or to secure an interpretation. F. For purposes of this Amendment, all official communications and notices among the parties shall be deemed made if sent postage paid, hand - delivered, sent by electronic mail, or faxed to the parties and address set forth below: TO CITY: City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 TO CONTRACTOR: President of the Board of Directors Keep Denton Beautiful, Inc. 1 117 Riney Road Denton, Texas 76207 G. This Amendment shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Amendment shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, this amendment is executed on this the day of , 2015, but to be effective from and after January 1, 2015. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation IAn ATTEST: JENNIFER WALTERS, CITY SECRETARY M. GEORGE C. CAMPBELL, CITY MANAGER Page 14 of 16 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY i ATTEST: Board Secretary "CONTRACTOR" KEEP DENTON BEAUTIFUL, INC. A Texas Non - Profit Corporation I: , PRESIDENT Page 15 of 16 0149ITIOUS A" Keep Denton Beautiful Work Statement Keep Denton Beautiful, Inc. ( "KDB ") develops and makes recommendations on issues related to the appearance and environment of Denton, Texas. KDB organizes and implements programs, projects, and educational opportunities in the areas of litter abatement, community beautification and urban forestry, to include without limitation, proposed public and private property tree planting programs such as (1) Tree Giveaways to the Community and Businesses; (2) Public and Youth Education functions; and (3) Arbor Day celebration activities.. KDB is an affiliate organization of the Keep America Beautiful, Inc. ( "KAB ") national program, and complies with all KAB standards to remain in good standing. Page 16 of 16 EXHIBIT B (KDB RESOLUTION) BOARD RESOLUTION At the meeting of the Board of Directors of Keep Denton Beautiful, Inc. (KDB) on July, 16, 2015, members heard a presentation regarding a series of new tree planting and distribution programs, to be funded through the City of Denton's Tree Mitigation Fund. In accordance with the KDB Bylaws, Article III. Section 4, board members submitted a vote via email, as requested by the Board President on July 29, 2015, and the following resolution was proposed and approved by the board: WHEREAS, the mission of Keep Denton Beautiful, Inc. is to engage our community in creating a clean and beautiful Denton; WHEREAS, the tree planting and distribution programs described herein support the mission of Keep Denton Beautiful, Inc.; WHEREAS, the Denton City Council authorizes the staff and board of Keep Denton Beautiful to oversee development of program applications and materials; Therefore, IT IS RESOLVED, that the Board hereby adopts the following rules and procedures for these new, Tree Fund - supported tree planting and distribution programs: NEIGHBORHOOD - HOSTED GIVEA WA Y PROGRAM R ULES Neighborhood groups and nonprofit organizations may apply to host their own small -scale tree giveaway event; Applicant groups may be granted between 100 and 300 trees to distribute to community members to plant on private property; Trees must be planted within the City of Denton city limits; Giveaway participants shall be residents of the City of Denton. Proof of residency shall be required; Participants receiving trees through this program shall plant trees on residential property, which the applicant either owns or resides in; Organizations that are approved to host a neighborhood giveaway must send a representative to a KDB Tree Planting Class before hosting their giveaway; Organizations that are approved to host a neighborhood giveaway must collect names, addresses, and proof of residency for all giveaway participants, and submit this information to Keep Denton Beautiful, Inc. as an attachment to the required follow -up report, due 6 months following the giveaway event date; Priority is given to neighborhoods that are tree needy, frequently used by pedestrians, or low to moderate income as determined by HUD; The Neighborhood- Hosted Giveaway Program will be made available in Fall of 2016, by which time the above - listed program guidelines may be adjusted or amended. BUSINESS GIVEA WAY PROGRAM RULES An application may be completed by a business or nonprofit organization; The business location must be located on commercially zoned property within the City of Denton; Applicants must represent one existing business entity; Each applicant must have staff available to work on the project by making arrangements to prep the sites and plant the trees, provide maintenance and submit a report to KDB; Applicants must file a water and maintenance plan with KDB; Each applicant may request a minimum of 2 and a maximum of 5 trees per business planting site; At least one group representative must attend a KDB Tree Planting Class before trees are planted; Selected groups must submit a Project Report to Keep Denton Beautiful, due by June 1, 2016. Trees must be planted in a publicly viewed area; Tree planting must take place in Fall of 2015; Further program dates and deadlines will be outlined in the Program Guidelines document for this program, made available through the KDB website and in hard copy, as requested. REDBUD TREE GIVEAWAY As part of Keep Denton Beautiful's existing (and separately funded) Denton Redbud Festival, the official Arbor Day celebration for Denton, up to 250 free Redbud trees will be distributed to festival attendees; Tree recipients must register their tree planting address and agree to respond to KDB - administered surveys inquiring about the health of their tree. CITIZEN FORESTER TRAINING To assist with tree care and public education duties associated with the tree planting and distribution programs described herein, KDB will partner with the Texas Forest Service, the Cross Timbers Urban Forestry Council, and the City of Denton to host a regional Citizen Forester Training class in Denton; The 2015 training course will begin with the first class session on September 9, 2015, and will end with the last class session on January 27, 2016; Participants in the class must register through KDB and pay a class enrollment fee of $50, payable to the Cross Timbers Urban Forestry Council; Participants must attend all 6 sessions of the training course to qualify for Citizen Forester Certification. CHILDREN'S ARBOR DAY ON- CAMPUS PLANTINGS As an enhancement to KDB's existing (and separately funded) Children's Arbor Day Program, schools applying for this program may request up to (2) 3 -inch caliper trees to be planted on the school campus, as well as mulch, watering bags, and printed urban forestry education materials; Schools in Denton ISD and private schools located within the City of Denton are eligible; School representatives applying for this program must clear tree planting locations with school Facilities personnel and the school principal or his /her designee. Signed: By: President Date: / 2015 FIRST AMENDED AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND KEEP DENTON BEAUTIFUL, INCORPORATED This First Amended Agreement (hereafter the "Amendment") is made and entered into by and between the City of Denton, a Texas municipal corporation, acting by and through its City Manager (hereinafter referred to as "CITY,") and Keep Denton Beautiful, Incorporated, 1117 Riney Road, Denton, Texas 76207, a Texas non-profit corporation (hereinafter referred to as "CONTRACTOR"). WHEREAS, heretofore on the 7th day of March, 2000 the City Council enacted Ordinance No. 2000-087 regarding Keep Denton Beautiful, Incorporated an "Agreement between the City of Denton and Keep Denton Beautiful Incorporated" was entered into on that date as well; with the passage of time it has become necessary and appropriate to amend such Agreement; this is the first amendment to such Agreement; and WHEREAS, the CITY recognizes that the mission of Keep Denton Beautiful, Inc. is "to engage our community in creating a clean and beautiful Denton;" and WHEREAS, the CITY has adopted a budget which includes in-kind support of, as well as a direct expenditure of funds for various Keep Denton Beautiful projects (herafter the "Projects"), from time-to-time.; and WHEREAS, the CITY has now designated the Solid Waste Department as the department of the City that is responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, the CITY wishes to continue to engage CONTRACTOR to continue to carry out such Projects; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. I. TERM This Amendment shall commence effective as of, January 1, 2015 and shall continue annually thereafter, so long as appropriate funds are budgeted for each fiscal year by the City for continuation of this Amendment. 111 Page 1 of 16 CONTRACTOR hereby accepts the responsibility for the performance of all services and activities described in the Work Statement attached hereto as Exhibit "A," in a lawful, satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S designated Executive Officer to be the CONTRACTOR's representative, responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and approved by CITY. The CITY's KDB Program Manager shall be CITY's representative that is responsible for the administration of this Amendment. Ill. CITY'S OBLIGATION A. Limitation of Liability. CITY shall provide CONTRACTOR the sum of $10,000 or such other sum of money as determined by the City's annual budget, in subsequent years, to be expended in accordance with the Project budget. Notwithstanding any other provision of the Amendment, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of the then current budget for CONTRACTOR. For the calendar year 2015 and for each subsequent year, the Project budget may be amended by approval of a budget for applicable fund(s) that specifically earmarks the manner in which the funds so appropriated are to be expended. B. Measure of Liability. In consideration of full and satisfactory services and activities hereunder by CONTRACTOR, CITY shall make payments to CONTRACTOR based on the annual Budget approved by the Council; subject however, to the limitations and provisions set forth in this Section and Section VII of this Amendment. (1) CITY shall not be liable for any cost or portion thereof which: (a) was incurred prior to the beginning date, or after the ending date specified in Section 1; (b) is not incurred in strict accordance with the terms of this Amendment, including all exhibits attached hereto; (c) is not an allowable cost as defined by Section X of this Amendment or the Project budget. (2) CITY shall not be liable for any cost or portion there of which is incurred with respect to any activity of CONTRACTOR which requires prior written approval and authorization from CITY; or after CITY has requested that CONTRACTOR furnish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. Page 2 of 16 (3) CITY shall not be obligated or liable under this Amendment to any party other than to the CONTRACTOR for payment of any monies or provision of any goods or services. C. In -Kind Services. The CITY shall provide staffing, office supplies, office space, and other related expenses to assist and facilitate CONTRACTOR in the accomplishment of the programs and Projects set forth in Exhibit "A;" provided that such expenditure of funds does not exceed the value that such programs and Projects bring to the CITY The determination of the amount of in-kind services provided by the CITY shall be limited generally by the CITY'S budget for such services and specifically by the City Manager's (or his/her designee's) allocation of the manpower and support services available to the Solid Waste Department for its overall operations in the CITY . Such allocation shall not exceed the amount allowed by Article 3, Section 52 of the Texas Constitution. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS CONTRACTOR shall comply with any and all applicable Federal laws, laws of the State of Texas and ordinances of the City of Denton, Texas. V. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Amendment. B. The person(s) signing and executing this Amendment on behalf of CONTRACTOR do/does hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Amendment on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Amendment if there is any dispute as to the legal authority of either CONTRACTOR or the person signing the Amendment to enter into this Amendment. CONTRACTOR is liable to CITY for any money which it has received from CITY for performance of the provisions of this Amendment if CITY has suspended or terminated this Amendment for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Amendment will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Amendment not been executed. Page 3 of 1 6 1"11 CONTRACTOR shall provide, oversee, administer, and carry out all of the activities and services set out in the WORK STATEMENT, which is attached hereto and incorporated herein for all purposes as Exhibit "A," utilizing the funds herein described in Article III." and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the Program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Amendment. No modifications or alterations may be made in the Work Statement without the prior written approval of the City's Representative described in Paragraph 11 herein. a A. Payments to Contractor. The CITY shall pay to the CONTRACTOR the sum of $10,000 (or such other budgeted sums for CONTRACTOR'S calendar year 2015 and for each fiscal year thereafter so long as this Amendment is in force) for services rendered under this Amendment with payment being due on or before January 1 of each calendar year thereafter, in which such sum is budgeted. CONTRACTOR is a calendar year taxpayer. B. Disallowed Costs. Upon termination of this Amendment, should any expense or charge for which payment has been made, be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, CONTRACTOR will refund such amount to CITY within ten (10) working days of a written notice issued to CONTRACTOR, which specifies the amount disallowed and declared due. Disallowed salaries or wages must be returned to CITY in the following format: (1) A cashier's check for the net aggregate amount payable to the City of Denton; and (2) A listing showing the Social Security number, full name, last known complete address and the amount owed to each person involved. Refunds of disallowed costs may not be made from these or any other funds received from or through CITY. VIII. WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and ftirnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. Page 4 of 16 B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business, or with the provisions of any existing indenture or other agreement of CONTRACTOR. E. CONTRACTOR has the power to enter into this Amendment and accept payment hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Amendment. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes, not delinquent, except as disclosed and shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment by the CONTRACTOR. Ix. COVENANTS A. During the period of this Amendment, the CONTRACTOR shall not, without the prior written consent of the City's authorized representative referenced in Paragraph H: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre- existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Amendment and with respect to which CITY has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property Page 5 of 16 purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. Me W, . � � Funds shall only be used in the performance of and in compliance with this Amendment and in conformance with the standards and provisions of Exhibits "N' attached hereto. X1. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Amendment, in compliance with the provisions of Exhibit "B," attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR!s record system and financial accounting system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Amendment or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Amendment for a period of three (3) years from the date of expenditure in order to permit CITY to timely audit such materials, should it so choose. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Amendment. D. At any reasonable time and as often as CITY may deem necessary, the CONTRACTOR shall make available to CITY all of its records and shall permit CITY to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said CITY representatives. 9 At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Amendment. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such audit, to the Assistant City Manager of Finance. W.�101 XIV. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR!s performance under this Agreement from time-to-time. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and Objectives, which are attached hereto as Exhibit "A," as well as to other provisions of this Amendment. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of recordkeeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its legal, monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY stafE E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR!s funding or regulatory bodies to CITY within ten (10) working days of receipt by CONTRACTOR. Xv. DIRECTORS' MEETINGS During the term of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be received by the CITY at least seventy-two (72) hours in advance of said meeting, in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the CONTRACTOR'S Board of Directors meetings. Minutes of all meetings of CONTRACTOR!s governing body shall be available to CITY within thirty (30) working days of approval. A. CONTRACTOR shall observe sound business practices with respect to providing Page 7 of 16 such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. If the premises on and in which the activities described in Exhibit "A" are conducted, are not owned or leased by the City, and the employees conducting these activities are not employed by CITY, then CONTRACTOR shall be covered by premises liability insurance, commonly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon the reasonable written request of CONTRACTOR, CITY may, at the sole discretion of its Risk Manager, approve alternate insurance coverage arrangements, in writing. C. CONTRACTOR will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants not employed by CITY, if applicable. D. CONTRACTOR shall maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTORs files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that CITY and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. The CONTRACTOR shall be obligated to obtain replacement insurance coverage and provide evidence of same to the CITY Risk Manager. A. CONTRACTOR shall comply with CITY's policies in regard to the Federal Equal Employment and Affirmative Action provisions, or submit an alternate plan within thirty (30) days of the effective date of this Amendment. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. D. In the event of CONTRACTOR!s non-compliance with the non-discrimination requirements, CITY, at its sole option, may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from firther contracts with CITY. Page 8 of 16 XVIII. PERSONNEL POLICIES CONTRACTOR's employment policies shall be be no more liberal than the CITY'S personnel and Human Resources policies. A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Amendment. CONTRACTOR further covenants that in the performance of this Amendment, that no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in, or use his position for a purpose that is, or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Amendment which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Amendment or the proceeds thereof. XX NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR!s governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step- parent, step-child, half-brother and half-sister. XXI. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation Page 9 of 16 B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to promote in any manner any sectarian or religious facility or activity. XXII. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Amendment shall be by a further written amendment, executed by duly-authorized signatories both parties, except when the terms of this Amendment expressly provide that another method shall be used. For purposes of this Amendment the duly-authorized signatories are the KDB Program Manager for the CITY and the Board President regarding the CONTRACTOR. In the event that additional monies are requested by CONTRACTOR, then the CITY'S authorized signatory shall be instead, the City Manager. B. CONTRACTOR may not make transfers between or among approved line-items within budget categories set forth in Exhibit "B" without the prior written approval of CITY. CONTRACTOR shall request, in writing, any budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Amendment. In addition, CONTRACTOR expressly understands that budget revisions cannot significantly change the nature, intent, or scope of the Program funded under this Amendment. C. CONTRACTOR shall submit revised budget and program information, whenever the level of funding for CONTRACTOR or the Program(s) described herein is/are altered according to the total levels contained in any Council approved budget. D. It is understood and agreed by CITY and CONTRACTOR that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Amendment. Any such modifications are to be automatically incorporated into this Amendment without any written amendment hereto, and shall become a part of the Amendment on the effective date specified by the law or regulation. E. CITY may, from time to time during the term of the Amendment, request changes in Exhibit "A," which may include an increase or decrease in the amount of CONTRACTOR!s compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget shall require the prior written approval of CITY. G. CONTRACTOR agrees to notify CITY of any proposed change in physical location for work performed under this Amendment, at least thirty (30) calendar days in advance of the change. H. CONTRACTOR shall promptly notify CITY of any changes in personnel or governing board composition. Page 10 of 1 6 1. It is expressly understood that neither the performance of Exhibit "A" for any program contracted hereunder, nor the transfer of funds between or among said Programs will be permitted. XXV. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, require the CONTRACTOR to refund all unused funds. Such notice may be given personally and by certified mail to the Board President of CONTRACTOR. The notice shall set forth the specific basis of any default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all returned eligible funds, withheld or impounded. If, however, CITY determines that CONTRACTOR has not come into compliance, the provisions of Section XXVI may be effectuated. XXVI. TERMINATION A. CITY may terminate this Agreement with cause for any of the following reasons: (1) CONTRACTOWs failure to attain compliance during any prescribed period of suspension as provided in Section XXV. (2) CONTRACTOR!s violation of covenants, agreements or guarantees of this Amendment. (3) A finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Amendment; (b) has allocated inventory to this Amendment substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Amendment in the ordinary course of business. (4) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOWs property, or the institution of bankruptcy, reorganization, rearrangement Page 11 of 16 of or liquidation proceedings by or against CONTRACTOR. (5) CONTRACTOR!s inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV of this Agreement. (6) The commission by CONTRACTOR of an act of bankruptcy. (7) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound, or shall be bound under the terms of the Amendment. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate this Amendment, and the effective date of termination thereof. Simultaneous notice of pending termination may be made to the other funding sources specified in Exhibit 1113.11 B. CITY may terminate this Amendment for convenience, at any time upon providing CONTRACTOR thirty (30) days written notice of termination. C. CONTRACTOR may terminate this Amendment in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Amendment, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. D. CONTRACTOR may terminate this Amendment upon the dissolution of CONTRACTOR!s organization not occasioned by a breach of this Amendment. E. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Amendment. CITY shall not be liable to CONTRACTOR or CONTRACTOR!s creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date. F. Notwithstanding any exercise by CITY of its right of suspension or tennination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Amendment by CONTRACTOR, and CITY may withhold any reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY from CONTRACTOR is agreed -upon or is otherwise determined. In the event that any claim, demand, suit or other action is made or brought by any person(s), firm, corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or Page 12 of 1 6 other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by certified mail. CONTRACTOR shall also provide to CITY at the same time a true and correct copy of the pleadings or documents served upon it by the opposing party. XXVIII. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all. claims, suits, causes of action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. A. CONTRACTOR shall not transfer, pledge or otherwise assign this Amendment or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Amendment is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Amendment constitute, or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Amendment, together with the referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Amendment, whether written or oral, shall have no force or effect whatsoever; nor shall any agreement, assertion, statement, understanding, or Page 13 of 1 6 other commitment occurring during the term of this Amendment, or subsequent thereto, have any legal force or effect whatsoever, unless property executed in writing, and if appropriate, recorded as a further amendment of this Amendment. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Amendment or its governing rules, codes, laws, ordinances or regulations, CITY will have the final authority to render or to secure an interpretation. F. For purposes of this Amendment, all official communications and notices among the parties shall be deemed made if sent postage paid, band-delivered, sent by electronic mail, or faxed to the parties and address set forth below: City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 TO CONTRACTOR: President of the Board of Directors Keep Denton Beautiful, Inc. 1117 Riney Road Denton, Texas 76207 G. This Amendment shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Amendment shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, this amendment is executed on this the day of , 2015, but to be effective from and after January t, 2015. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation 0 ATTEST: JENNIFER WALTERS, CITY SECRETARY am APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: M- Board Secretary KEEP DENTON BEAUTIFUL, INC. A Texas Non-Profit Corporation By: psi PRESIDEN Page 15 of 16 1*114:11 Keep Denton Beautiful Work Statement Keep Denton Beautiful, Inc. ("KDB") develops and makes recommendations on issues related to the appearance and environment of Denton, Texas. KDB organizes and implements programs, projects, and educational opportunities in the areas of litter abatement, community beautification and urban forestry, to include without limitation, proposed public and private property tree planting programs such as (1) Tree Giveaways to the Community and Businesses; (2) Public and Youth Education functions; and (3) Arbor Day celebration activities.. KDB is an affiliate organization of the Keep America Beautiful, Inc. ( "K AB ") national program, and complies with all KAB standards to remain in good standing. Page 16 of 16 BOARD RESOLUTION At the meeting of the Board of Directors of Keep Denton Beautiful, Inc. (KDB) on July, 16, 2015, members heard a presentation regarding a series of new tree planting and distribution programs, to be funded through the City of Denton's Tree Mitigation Fund. In accordance with the KDB Bylaws, Article III. Section 4, board members submitted a vote via email, as requested by the Board President on August 3, 2015, and the following resolution was proposed and approved by the board: WHEREAS, the mission of Keep Denton Beautiful, Inc. is to engage our community in creating a clean and beautiful Denton; WHEREAS, the tree planting and distribution programs described herein support the mission of Keep Denton Beautiful, Inc.; WHEREAS, the Denton City Council authorizes the staff and board of Keep Denton Beautiful to oversee development of program applications and materials; Therefore, IT IS RESOLVED, that the Board hereby adopts the following rules and procedures for these new, Tree Fund- supported tree planting and distribution programs: NEIGHBORHOOD - HOSTED GIVEA WAY PROGRAM RULES Neighborhood groups and nonprofit organizations may apply to host their own small-scale tree giveaway event; Applicant groups may be granted between 100 and 300 trees to distribute to community members to plant on private property; Trees must be planted within the City of Denton city limits; Giveaway participants shall be residents of the City of Denton. Proof of residency shall be required; Participants receiving trees through this program shall plant trees on residential property, which the applicant either owns or resides in; Organizations that are approved to host a neighborhood giveaway must send a representative to a KDB Tree Planting Class before hosting their giveaway; Organizations that are approved to host a neighborhood giveaway must collect names, addresses, and proof of residency for all giveaway participants, and submit this information to Keep Denton Beautiful, Inc. as an attachment to the required follow -up report, due 6 months following the giveaway event date; Priority is given to neighborhoods that are tree needy, frequently used by pedestrians, or low to moderate income as determined by HUD; Priority is also given to groups that can ensure trees will be planted in publicly viewed areas, such as in a front yard; The Neighborhood- Hosted Giveaway Program will be made available in Fall of 2016, by which time the above - listed program guidelines may be adjusted or amended. BUSINESS GIVEAWAY PROGRAM RULES An application may be completed by a business or nonprofit organization; The planting site must be on a property that has a commercial use or is located in a commercially zoned district within the City of Denton; Applicants must represent one existing business entity; Each applicant must have staff available to work on the project by making arrangements to prep the sites and plant the trees, provide maintenance and submit a report to KDB; Applicants must file a water and maintenance plan with KDB; Each applicant may request a minimum of 2 and a maximum of 5 trees per business planting site; At least one group representative must attend a KDB Tree Planting Class before trees are planted; Selected groups must submit a Project Report to Keep Denton Beautiful, due by June 1, 2016. Trees must be planted in a publicly viewed area; Tree planting must take place in Fall of 2015; Further program dates and deadlines will be outlined in the Program Guidelines document for this program, made available through the KDB website and in hard copy, as requested. REDBUD TREE GIVEAWAY As part of Keep Denton Beautiful's existing (and separately funded) Denton Redbud Festival, the official Arbor Day celebration for Denton, up to 250 free Redbud trees will be distributed to festival attendees; Tree recipients must register their tree planting address and agree to respond to KDB- administered surveys inquiring about the health of their tree. CITIZEN FORESTER TRAINING To assist with tree care and public education duties associated with the tree planting and distribution programs described herein, KDB will partner with the Texas Forest Service, the Cross Timbers Urban Forestry Council, and the City of Denton to host a regional Citizen Forester Training class in Denton; KDB will be hosting this training, with training material content provided by the partner organizations, Texas Forest Service and Cross Timbers Urban Forestry Council. KDB will accept registrations for the program, oversee coordination of classroom space and food /refreshments, and confirm speakers and activities; The 2015 training course will begin with the first class session on September 9, 2015, and will end with the last class session on January 27, 2016; Participants in the class must register through KDB and pay a class enrollment fee of $50, payable to the Cross Timbers Urban Forestry Council; Participants must attend all 6 sessions of the training course to qualify for Citizen Forester Certification. CHILDREN'S ARBOR DAY ON- CAMPUS PLANTINGS As an enhancement to KDB's existing (and separately funded) Children's Arbor Day Program, schools applying for this program may request up to (2) 3 -inch caliper trees to be planted on the school campus, as well as mulch, watering bags, and printed urban forestry education materials; Schools in Denton ISD and private schools located within the City of Denton are eligible; School representatives applying for this program must clear tree planting locations with school Facilities personnel and the school principal or his /her designee. Signed: By: V President Date: 08/04/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -691, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to enter into an Interlocal Agreement with Denton County for the County to provide Property Tax Billing and Collections Services for the City of Denton; providing a savings clause; and providing an effective date. BACKGROUND This Interlocal Agreement for tax collection services to be performed by Denton County was initially established in March 2007. At that time, the agreement was exclusive to the processing of statements and supplemental payments for the 2007 tax year and subsequent tax years. In August 2008, the City Council renewed the Interlocal Agreement, and included a provision for all tax years to be included in processing supplemental tax payments. The County currently processes tax statements (approximately 46,000) and tax supplemental payments on the City's behalf. This arrangement is efficient because one entity is responsible for billing and collecting payments for all three taxing entities (the City, the County and the School District). This Interlocal Agreement continues to authorize Denton County to process tax statements and payments on behalf of the City of Denton. The price for this service will be $0.69 per parcel. The County will process the initial tax statements in October, with two delinquent mailings in the following February and May. RECOMMENDATION Staff recommends approval of continuing the Interlocal Agreement with Denton County to provide tax processing services for the 2015 tax year. ESTIMATED SCHEDULE OF PROJECT This is a one (1) year contract with an additional one (1) year automatic renewal. FISCAL INFORMATION Payment for these services will be funded from the General Fund operating account 160099.7879 in the City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -691, Version: 1 estimated annual amount of $31,740 for FY 2015 -16. EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 2 of 2 Printed on 8/13/2015 sAegahour docurnents\ordinances11 5\denton county property tax interlocal agreement.doc Exhibit I ,A] 19 01 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO ENTER INTO AN INTERLOCAL AGREEMENT WITH DENTON COUNTY FOR THE COUNTY TO PROVIDE PROPERTY TAX BILLING AND COLLECTION SERVICES FOR THE CITY OF DENTON; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton (the "City") and Denton County (the "County") desire to enter into an Interlocal Agreement for the County, through its duly elected tax assessor-collector, to act as tax assessor and collector for the City for the purpose of billing and collecting property taxes; and WHEREAS, the County is well equipped to perform this service; and WHEREAS, the City Council finds that the Interlocal Agreement is in the public interest; NOW, THEREFORE, SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Interlocal Agreement on behalf of the City with the County. The City Manager, or his designee, is hereby authorized to carry out the rights and duties of the City under the Interlocal Agreement including the expenditure of funds provided for therein. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. Me., ATTEST: JENNIFER WALTERS, CITY SECRETARY Illkld APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: THE STATE OF TEXAS § COUNTY OF DENTON § INTERLOCAL COOPERATION AGREEMENT FOR TAX COLLECTION BETWEEN DENTON COUNTY, TEXAS, AND CITY/ TOWN OF Denton THIS AGREEMENT is made and entered into this day of 2015, by and between DENTON COUNTY, a political subdivision of the State of Texas, hereinafter referred to as "COUNTY," and, the City/Town of Denton , Denton County, Texas, also a political subdivision of the State of Texas, hereinafter referred to as "MUNICIPALITY." WHEREAS, COUNTY and MUNICIPALITY mutually desire to be subject to the provisions of V.T.C.A. Government Code, Chapter 791, the Interlocal Cooperation Act, and V.T.C.A., Tax Code, Section 6.24 and 25.17 and; WHEREAS, MUNICIPALITY has the authority to contract with the COUNTY for the COUNTY to act as tax assessor and collector for MUNICIPALITY and COUNTY has the authority to so act; NOW THEREFORE, COUNTY and MUNICIPALITY, for and in consideration of the mutual promises, covenants, and agreements herein contained, do agree as follows: Page 1 of 14 I. The effective date of this Agreement shall be the 1" day of October, 2015. The term of this Agreement shall be for a period of one year, from October 1, 2015, to and through September 30, 2016. This Agreement shall be automatically renewed for an additional one (1) year term at the discretion of the COUNTY and MUNICIPALITY, unless written notice of termination is provided by the terminating party to the other party prior to one hundred -fifty (15 0) days of the expiration date of the current term of the Agreement. MUNICIPALITY agrees to deliver this agreement no later than September 30, 2015 in manner required by COUNTY to fully execute said collection services by COUNTY. Il. For the purposes and consideration herein stated and contemplated, COUNTY shall provide the following necessary and appropriate services for MUNICIPALITY to the maximum extent authorized by this Agreement, without regard to race, sex, religion, color, age, disability, or national origin: 1. COUNTY, by and through its duly qualified tax assessor - collector, shall serve as tax assessor - collector for parcels in Denton County of the MUNICIPALITY for ad valorem tax collection for tax year 2015, and each tax year for the duration of this Agreement. COUNTY agrees to perform all necessary ad valorem assessing and collecting duties for MUNICIPALITY and MUNICIPALITY does hereby expressly authorize COUNTY to do and perform all acts necessary and proper to assess and collect taxes for MUNICIPALITY. COUNTY agrees to collect base taxes, penalties, interest, and attorney's fees. 2. COUNTY agrees to prepare and mail all current and delinquent tax. Page 2 of 14 statements required by statute, supplemental changes for applicable property accounts, as well as prepare and mail any other mailing as deemed necessary and appropriate by COUNTY; provide daily and monthly collection reports to MUNICIPALITY; prepare tax certificates; develop and maintain both current and delinquent tax rolls, disburse tax monies to MUNICIPALITY daily (business day) based on prior day tax postings. COUNTY agrees to approve and refund overpayment or erroneous payment of taxes for MUNICIPALITY pursuant to Texas Property Tax code Sections 31.11 and 31.12 from available current tax collections of MUNICIPALITY; meet the requirements of Section 26.04 of the Texas Tax Code; and to develop and maintain such other records and forms as are necessary or required by State law, rules, or regulations. 3. COUNTY further agrees that it will calculate the effective tax rates and rollback tax rates for MUNICIPALITY and that such calculations will be provided at no additional cost to MUNICIPALITY. The information concerning the effective and rollback tax rates will be published in the form prescribed by the Comptroller of Public Accounts of the State of Texas, and as required by Section 26.04 of V.T.C.A. Tax Code. MUNICIPALITY shall notify tax assessor-collector no later than July 25th of each year that MUNICIPALITY wishes publication of forms or notices specified in this section. MUNICIPALITY further agrees that if COUNTY calculates effective and rollback tax rates, COUNTY shall publish the required notices on behalf of MUNICIPALITY. It is understood and agreed by the parties that the expense of publication shall be borne by MUNICIPALITY and that COUNTY shall provide MUNICIPALITY's billing address to the newspaper publishing the effective and rollback tax rates. Page 3 of 14 4. COUNTY agrees, upon request to offer guidance and the necessary forms for posting notices of required hearing and quarter-page notices as required by Sections 26.05 and 26.06 of V.T.C.A. Tax Code and Section 140.010 of Local Government Code, if MUNICIPALITY requests such 7 days in advance of the intended publication date, COUNTY agrees to manage all notices and publications on behalf of MUNICIPALITY if request is received no later than July 25th. NIUNICIEPALITY must approve all calculations and notices, in the format required by COUNTY, before publication may proceed. The accuracy and timeliness of all required notices are the responsibility of MUNICIPALITY. 5. Should MUNICIPALITY vote to increase its tax rate above the rollback tax rate the required publication of notices shall be the responsibility of MUNICIPALITY. 6. COUNTY agrees to develop and maintain written policies and procedures of its operation. COUNTY further agrees to make available full information about the operation of the County Tax Office to MUNICIPALITY, and to promptly furnish written reports to keep MUNICIPALITY informed of all financial information affecting it. Page 4 of 14 7. MUNICIPALITY agrees to promptly deliver to COUNTY all records that it has accumulated and developed in the assessment and collection of taxes, and to cooperate in furnishing or locating any other information and records needed by COUNTY to perform its duties under the terms and conditions of this Agreement. 8. COUNTY agrees to allow an audit of the tax records of MUNICIPALITY in COUNTY'S possession during normal working hours with at least 48 hours advance, written notice to COUNTY. The expense of any and all such audits shall be paid by MUNICIPALITY. A copy of any and all such audits shall be furnished to COUNTY. 9. If required by MUNICIPALITY, COUNTY agrees to obtain a surety bond for the County Tax Assessor/Collector. Such bond will be conditioned upon the faithful performance of the Tax Assessor/Collector's lawful duties, will be made payable to MUNICIPALITY and in an amount determined by the governing body of MUNICIPALITY. The premium for any such bond shall be borne solely by MUNICIPALITY. 10. COUNTY agrees that it will post a notice on its website, as a reminder that delinquent tax penalties will apply to all assessed taxes which are not paid by January 31, 2016. COUNTY agrees to mail a reminder notice to delinquent property accounts in the month of February notifying that delinquent tax penalties will apply to all assessed taxes which are not paid by January 31, 2016. The reminder notices will be mailed between February 5h and February 28th- It. COUNTY agrees that it will post to a secure website collection reports for MUNICIPALITY listing current taxes, delinquent taxes, penalties and interest on a daily Page 5 of 14 basis through September 30, 2016. COUNTY will provide monthly Maintenance and Operation (hereinafter referred to as "MO"), and Interest and Sinking (hereinafter referred to as "IS") collection reports; provide monthly recap reports; and provide monthly attorney fee collection reports. 12. MUNICIPALITY retains its right to select its own delinquent tax collection attorney and COUNTY agrees to reasonably cooperate with the attorney selected by MUNICIPALITY in the collection of delinquent taxes and related activities. 13. MUNICIPALITY will provide COUNTY with notice of any change in collection attorney on or before the effective date of the new collection attorney contract, Ill. COUNTY hereby designates the Denton County Tax Assessor/ Collector to act on behalf of the County Tax Office and to serve as Liaison for COUNTY with MUNICIPALITY. The County Tax Assessor/Collector, and/or his/her designee, shall ensure the performance of all duties and obligations of COUNTY; shall devote sufficient time and attention to the execution of said duties on behalf of COUNTY in full compliance with the terms and conditions of this Agreement; and shall provide immediate and direct supervision of the County Tax Office employees, agents, contractors, subcontractors, and/or laborers, if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of COUNTY and MUNICIPALITY. Page 6 of 14 W. COUNTY accepts responsibility for the acts, negligence, and/or omissions related to property tax service of all COUNTY employees and agents, sub - contractors and /or contract laborers, and for those actions of other persons doing work under a contract or agreement with COUNTY to the extent allowed by law. 0 MUNICIPALITY accepts responsibility for the acts, negligence, and /or omissions of all MUNICIPALITY employees and agents, sub - contractors and/or contract laborers, and for those of all other persons doing work under a contract or agreement with MUNICIPALITY to the extent allowed by law. Vl. MUNICIPALITY understands and agrees that MUNICIPALITY, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of COUNTY. COUNTY understands and agrees that COUNTY, its employees, servants, agents, and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of MUNICIPALITY. Page 7 of 14 M For the services rendered during the 2015 tax year, MUNICIPALITY agrees to pay COUNTY for the receipting, bookkeeping, issuing, and mailing of tax statements as follows: 1. The current tax statements will be mailed by October 10th or as soon thereafter as practical. In order to expedite mailing of tax statements the MUNICIPALITY must adopt their 2015 tax rate by September 29, 2015. Failure of the MUNICIPALITY to adopt a tax rate by September 29, 2015 may cause delay in timely mailing of tax statements. Pursuant to Texas Property Tax Code §26.05 the MUNICIPALITY must adopt a tax rate by the later of September 30th or 60 days after the certified appraisal roll is received. Failure to adopt and deliver a tax rate by the later of September 301h or 60 days after the certified appraisal roll is received may result in delay of processing and mailing MUNICIPALITY tax statements. MUNICIPALITY agrees to assume the costs for additional delayed tax statements, processing and mailing as determined by COUNTY. Notwithstanding the provisions of the Tax Code, if MUNICIPALITY fails to deliver the adopted tax rates (M&O and I&S) to the Tax Assessor Collector by September 29, 2015, it may will cause a delay in the publication and release of tax statements. 2. COUNTY will mail an additional notice during the month of March following the initial mailing provided that MUNICIPALITY has requested such a notice on or before February 28th. The fee for this service will be a rate not to exceed $0.69 per statement. 3. At least 30 days, but no more than 60 days, prior to April 1st, and following the initial mailing, COUNTY shall mail a delinquent tax statement meeting the Page 8 of 14 requirements of Section 33.11 of the Texas Property Tax Code to the owner of each parcel to the owner of each parcel having delinquent taxes. 4. At least 30 days, but no more than 60 days, prior to July I st, and following the initial mailing, COUNTY will mail a delinquent tax statement meeting the requirements of Section 33.07 of the Texas Property Tax Code will be mailed to the owner of each parcel having delinquent taxes. 5. For accounts which become delinquent on or after June I", COUNTY shall mail a delinquent tax statement meeting the requirements of Section 33.08 of the Texas Property Tax Code to the owner of each parcel having delinquent taxes. 6. In event of a successful rollback election which takes place after tax bills for MUNICIPALITY have been mailed, MUNICIPALITY agrees to pay COUNTY a programming charge of $5,000.00. COUNTY will mail corrected statements to the owner of each parcel. COUNTY will charge a fee for this service at a rate not to exceed $0.69 per statement pursuant to Property Tax Code Section 26.07 (f). When a refund is required per Property Tax Code Section 26.07 (g), COUNTY will charge a $.25 processing fee per check, in addition to the corrected statement mailing costs. Issuance of refunds, in the event of a successful rollback election, will be the responsibility of the COUNTY. MUNICIPALITY will be billed for the refunds, postage and processing fees. T MUNICIPALITY understands and agrees that COUNTY will, no later than January 3 I't. deduct from current collections o f t h e MUNICIPALITY the "Total Cost" of providing all services described in paragraphs 1-5 above. This "Total Cost" includes any such services that have not yet been performed at the time of deduction. The "Total Cost" of providing all services described in paragraphs 1-5 above shall be the total of Page 9 of 14 $ 0.69 x the total number of parcels listed on MUNICIPALITY's September 30, 2014 end of year Tax Roll for tax year 2014. In the event that a rollback election as described in paragraph 6 takes place, COUNTY shall bill MUNICIPALITY for the applicable programming charge, check processing fees, refunds paid, and refund postage costs. MUNICIPALITY shall pay COUNTY all billed amounts within 30 days of its receipt of said bill. In the event costs for additional delayed tax statements, processing and mailing are incurred as described in paragraph 1, COUNTY shall bill MUNICIPALITY for such amounts. MUNICIPALITY shall pay COUNTY all such billed amounts within 30 days of its receipt of said bill. 8. MUNICIPALITY further understands and agrees that COUNTY (at its sole discretion) may increase or decrease the amounts charged to MUNICIPALITY for any renewal year of this Agreement, provided that COUNTY gives written notice to MUNICIPALITY sixty (60) days prior to the expiration date of the initial term of the Agreement. The County Budget Office establishes collection rates annually based on a survey of actual annual costs incurred by the COUNTY in performing tax collection services. The collection rate for each year is approved by County Commissioners' Court. All entities are assessed the same per parcel collection rate. VIII. COUNTY agrees to remit all taxes, penalties, and interest collected on MUNICIPALITY's behalf and to deposit such funds into the MUNICIPALITY's depositories as designated: Page 10 of 14 1. For deposits of tax, penalties, and interest, payment shall be by wire transfer or ACH to MUNICIPALITY depository accounts only, and segregated into the appropriate MO and IS accounts. Only in the event of failure of electronic transfer protocol will a check for deposits of tax, penalty and interest be sent by mail to MUNICIPALITY. 2. If MUNICIPALITY uses the same depository as COUNTY, the deposits of tax, penalty and interest shall be by deposit transfer. 3. In anticipation of renewal of this Agreement, COUNTY further agrees that deposits will be made daily through September 30, 2016. It is expressly understood, however, that this obligation of COUNTY shall not survive termination of this Agreement, whether by termination by either party or by failure of the parties to renew this Agreement. 4. In event that COUNTY experiences shortage in collections as a result of an outstanding tax debt of MUNICIPALITY, the MUNICIPALITY agrees a payment in the amount of shortage shall be made by check or ACH to COUNTY within 15 days after notification of such shortage. lim In the event of termination, the withdrawing party shall be obligated to make such payments as are required by this Agreement through the balance of the tax year in which notice is given. COUNTY shall be obligated to provide services pursuant to this Agreement, during such period. Page 11 of 14 R This Agreement represents the entire agreement between NIUMCIPALITY and COUNTY and supersedes all prior negotiations, representations, and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the governing bodies of both MUNICIPALITY and COUNTY or those authorized to sign on behalf of those governing bodies. X1. Any and all written notices required to be given under this Agreement shall be delivered or mailed to the listed addresses: COUNTY: County Judge of Denton County 110 West Hickory Denton, Texas 76201 Telephone 940-349-2820 MUNICIPALITY: The City/Town of Denton Address: 215 E. McKinney City, State, Zip: Denton, TX 76201 Telephone:940-349-8260 Email: Page 12 of 14 Charles.Springer@CityofDenton.com XR. MUNICIPALITY hereby designates C h u ck Springerto act on behalf of MUNICIPALITY, and to serve as Liaison for MUNICIPALITY to ensure the performance of all duties and obligations of MUNICIPALITY as stated in this Agreement. MUNICIPALrIY's designee shall devote sufficient time and attention to the execution of said duties on behalf of MUNICIPALITY in full compliance with the terms and conditions of this Agreement; shall provide immediate and direct supervision of the MUNICIPALITY employees, agents, contractors, subcontractors, and/or laborers, if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of MUNICIPALITY and COUNTY. am In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties that the remaining portions shall remain valid and in full force and effect to the extent possible. EM The undersigned officers and/or agents of the parties are the properly authorized officials and have the necessary authority to execute this agreement on behalf of the parties. Each party hereby certifies to the other that any resolutions necessary for this Agreement have been duly passed and are now in full force and effect. Executed in duplicate originals this, day of 2015. Page 13 of 14 COUNTY Denton County 110 West Hickory Denton, Texas 76201 BY: Honorable Mary Horn Denton County Judge ATTEST: BY: Juli Luke Denton County Clerk Town/City: Denton Address: 215 E. McKinney City, State, Zip: Denton, TX 76201 BY: Name: Title: ATTEST: BY: Name Title APPROVED FORM AND CONTENT: APPROVED AS TO FORM: Michelle French Denton County Tax Assessor/Col lector Page 14 of 14 Denton County Assistant District Attorney APPROVED AS TO FORM: CITY ATTORNEY CITY OF DENTON, TEX�$ City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -692, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: August 18, 2015 SUBJECT Consider approval of a resolution nominating one member to the Board of Managers of the Denco Area 9 -1 -1 District; and declaring an effective date. BACKGROUND The Denco Area 9 -1 -1 District was created in 1987, and is governed by a board of managers appointed by the County, participating cities, and the Denton County Fire Chief s Association. Each year, the term of one of the two members appointed by participating municipalities expires. This year, the term of Sue Tejml expires September 30, 2015. Board members serve in two -year staggered terms and are eligible for reappointment. Three nominations for the position were received from area cities. The three nominees are Sue Tejml, David Terre and Paul Young. The resumes of the nominees are attached to this report along with a list of the current Board Members. Denco requests each city vote for one of the nominees and advise them of its selection prior to September 9, 2015. The nominee with the most votes will be the municipalities' representative to the Denco Area 9 -1 -1 District Board of Managers for the two -year term beginning October 1, 2015. The City previously nominated and voted for Sue Tejml in 2013. The attached resolution would cast the City's vote for Sue Tejml. EXHIBITS 1. Memorandum from Denco and resumes of nominated individuals 2. Resolution Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 1 of 1 Printed on 8/13/2015 Denco Area 9 -1 -1 District 1075 Princeton Street a Lewisville, TX 75067 - Mailing: PO BOX 293058 - Lewisville, TX 75029 -3058 Phone: 972-221-0911 Fax: 972-420-0709 TO: Denco Area 9 -1 -1 District Participating Jurisdictions FROM: Mark Payne, Executive Director DATE: July 16, 2015 RE: Vote for Appointment to the Denco Area 9 -1 -1 District Board of Managers On May 15, 2015, the Denco Area 9 -1 -1 District requested participating municipalities nominate a representative for potential appointment to the district's board of managers. The following nominations were received by the July 15, 2015 deadline: Nominee Nominating Municipality Sue Te m'l City of Highland Village City of Justin City of Lake Dallas City of Lewisville Town of Copper Canyon Town of Cross Roads Town of Dish Town of Double Oak Town of Northlake Town of Shady Shores Town of Trophy Club David Terre City of The Colony Paul Young City of Pilot Point Enclosed for your review are bios or resumes of each nominee. The Denco Area 9 -1 -1 District requests that each participating municipality vote by council resolution for one of the nominees and advise the district of its selection by 5 p.m. on September 9, 2015. Notification of the council's vote must come in the form of official council action. Enclosed is a sample resolution you may wish to use. If a certain signature is not required in your resolution, please make sure to remove the signature line from the resolution, as all signees listed must sign the resolution for it to be considered valid council action. Also enclosed for your reference, is a copy of the Denco resolution outlining the complete board appointment process as well as a list of current board members. Please send a copy of the resolution recording your council's action to: Denco Area 9 -1 -1 District, P.O. Box 293058, Lewisville, TX 75029 -3058 or fax it to 972 - 420 -0709. You may also email your resolution to Andrea Zepeda, Executive Assistant at andirea.e eda denco.or . Thank you for your assistance in this matter. Enclosures www.denco.org Sue Rosson Tejml June 2015 835 Orchid Hill Lane Metro: 940 - 241 -2216 Argyle- Copper Canyon, TX 76226 -4526 suecooyercanvonraol.com PERSONAL: Native Texan; raised in Corpus Christi (Copper Canyon resident since 1991) Married to husband Emil Tejml (engineer & attorney, retired Hoechst - Celanese VP) (In case you wondered, his Czech name does rhyme — A mull TAY mull.) Three adult children (all A &M grads), seven grandchildren (ages 2 to 26) With corporate moves, we have lived in 4 states, 6 Texas cities & worked abroad Stay -at -home mother, until I became an attorney at age 40. EDUCATION: University of Texas at Austin (B.A. History) University of Hawaii (all summer, literature & history of the Pacific) Texas A &M University at Kingsville (M.A. History) Rice University (full scholarship for PhD History, lack dissertation for degree) New York University Law School (2 years) - U. of Houston Law School (LL.B.) MAYOR: Town of Co er Can on far 10 earsre reelected u:t o Deed 6tt" term 2015' -2017 2015 Copper Canyon ranked #6 in Ten Best Neighborhoods in DFW Metroplex by Dallas inP MornNews, ranked #4 in safety for residents ��eadershi North 'I�exas graduate � -forth Tcas CoAnnxission 2015 Class 6 Denco 911- oard of ana ere 201 -2015w r�otrai.rtee for 2"d term 201:5 - 2017 "What's Happening in Copper Cannon" For 10 years I have personally written this monthly Mayor's column in The Cross Timbers Gazette, a local newspaper with 37,000 circulation. (Second in circulation in Denton County only to the Dallas Morning News) This has been my attempt to keep residents informed of events in our Town and also of subjects of general interest in the area — roads, water, gas well drilling, etc. Initiated Annual Denton County Mayors Crime Luncheon (2012 -2015) The goal was to coordinate information on area crime between the Mayors, their Police Chiefs, the Denton County Sheriffs Office, the Commissioners Court, our Texas Legislature representatives, and our US Congressman. Denton County Emergency Services District #1 Our small Town's dilemma was inability to adequately fund emergency services. The Founding Committee's task was to educate residents on the benefits of an ESD. The ESD would collectively provide fire and emergency medical services to the towns of Argyle, Bartonville, Copper Canyon, Corral City, Northlake, and FWSD #6 and #7 in Lantana. But a specific property tax would be needed to fund it. ESD #1 was created in 2006 by a 62% positive vote in a district -wide election. Draftixr Con ittee: "Best Practices for Municipalities ,�alities and Gas Pi Pipelines' (Adopted 2010 by most cities and pipeline corporations with gas pipeline operations in Denton County.) This was a collaborative effort of Mayors, Denton County Commissioners, and the Texas Pipeline Association. The goal was to expedite safe pipeline construction, but with a minimal impact on landowners, local businesses, and future development plans of each city. Argyle Volunteer Fire District Board (Served 10 years, 2005 to present) Neighborhood Watch and Crime Prevention Copper Canyon does not have a police department. Resident Block Captains were recruited for each street in town. The Town Council then contracted to pay for two Sheriffs Deputies dedicated to Copper Canyon for 80 hours per week. On every shift the Deputy patrols each street in Copper Canyon at least once and sometimes twice. The result has been a virtually crime free community for the past seven years. (It helps that the town is a stable community with neighbors personally knowing each other for years.) LEGAL: Solo Attorney 15 years (General Civil Practice - municipal, family law, oil & gas) Matagorda County Bar Association - President State Bar of Texas - State CLE Committee District 5 Admissions Texas Bar Foundation - Life Member FAMILY LAW: Board Certified Family Law (for 10 years) Texas Supreme Court Committee on Child Support Guidelines Texas Supreme Court Committee on Child Visitation Guidelines MUNICIPAL: City Attorney of Bay City, Texas (for 6 years; population approx. 20,000) Municipal Prosecutor Legal Advisor to Police Department Bay City Home Rule Charter Commission (elected public office, Co- Chairman) Texas City Attorneys Association VOLUNTEER: CASA of Denton County (2 years) (Volunteer as a Court appointed Special Advocate for abused children) HUG Romania — Volunteer in a Romanian orphanage for 3 weeks CERT trained for Town of Copper Canyon's Emergency Response INTERESTS: home Design: Designed 5 of our family homes, including in Copper Canyon Misc.: Computer, cooking, dollhouse miniatures, hunting, organic gardening Read: Biography, history, current global events, 1800's British romance novels WORLD TRAVEL: Eisenhower "People to People Ambassador" — Texas guest of China's Department of Justice for one month with 50 American women attorneys & judges Have visited for a week to a month each in: Alaska, Australia, Bermuda, Beirut, Canada, China, Czech Republic, England, France, Germany, Greece, Hawaii, Ireland, Italy, Japan, Mexico, Romania, Russia, Saudi Arabia, Scotland, Singapore, Switzerland, Tahiti, Turkey, Venezuela, & Wales. Hope to visit: Africa, Argentina, Brazil, Egypt, India, Israel, New Zealand, Peru, &Tasmania. David Terre 3941 Teal Cove The Colony, Texas 75056 EDUCATION Moberly Community College (2 Years) Drake University Earned a BS Degree in Business Administration and a Minor in Economics EMPLOYMENT HISTORY Enjoyed a, wonderful 46 year career working for Wilson Sporting Goods. Rose through the ranks to become VP of Sales responsible for all domestic sales. Along the way, also managed European Sales Operations while living in Germany; worked in Marketing, coordinating successful new product introductions; and, also managed West Coast Distribution Operations. Retired in 2008. THE COLONY PLANNING m,and ZONING COMMISSION Served 3 years- 2008 thru 2011 as a member and Vice Chair of the board. THE COLONY CITY COUNCIL • Elected in 2011 and received the honor of being elected Mayor Pro Tem during my first term. • In 2012 appointed to the Local Development Corporation Board of Directors to oversee Grandscape (Nebraska Furniture Mart) Development. • In 2013 became the first Council Member from The Colony to ever be elected to Denton County Tax Appraisal District Board of Directors. • Was reelected in 2014 to a second term on council, receiving 71% of the total vote in a three candidate race. HONORS 1982 Drake University Basketball Hall of Fame 1994 Moberly Community College Basketball Hall of Fame 1995 -2003 Three -time Senior Olympics Gold Medal Winner playing for the USA Basketball Team. 1999 Received Wilson Wall of Fame Honor 2007 Selected as Moberly Community College Outstanding Alumni of The Year 2013 Received Washington High School Hall of Honor Award WHY I BELIEVE I AM UNIQUELY OUALIFIED „and VERY MUCH DESIRE to SERVE ON THE DENCO AREA 9 -1 -1 BOARD of MANAGERS Throughout my life I have served in leadership positions, particularly during my Wilson career and my City Council work. My formula for success has always been to work hard, stay organized, use common sense and live by the Golden Rule. I would apply this same approach as a member of the Denco Area 9- l -1 Board of Managers. I totally embrace the mission statement to provide an efficient, effective, enhanced 9 -1 -1 Emergency Telecommunications Systems Service to all Denton County residents, and will always work hard to achieve that end result. I ask that you would grant me this opportunity by electing me to serve on the Denco Area 9 -1 -1 Board of Managers. A, III ...... Y 940 - 390 -4685 670 W Walcott, Pilot Point, TX 76258 paulyouung5 @yahoo.co1n Denco 911 hoard Education • Weatherford College 2013 - AAS Fire Administration 111111I Weatherlirrd College 2013 AAS Fire Protection Technology • Considered for Phi Theta Kappa 6 Texas Commission on Fire Protection Master Firefighter • 'Texas Commission on Fire Protection Fire Instructor It e Texas Commission on Fire Protection Field Examiner UT Southwestern LMT Basic 1988 r Mctrocres( Medical School- Paramedic 1995 • National Fire Academy - Fire Service Supervision 2008 a Wildland Firefighter I Red Card 2009 Experience I' P 210 1,14, F' IreseiiA Pilot Point City Council -- Place I J 984 ., i p III 1 ") 9 �'�'i ' o i t"u 't e t �' r Fir ' m h ,t r Lewisville Volunteer Fin Department I Lewisville, IN Wi d"i 198,8 20 14 I':wIrefighter F sratiii'ledm Lewisville FD: Smed on the Strategy and goak committcc for the 1_ewlsville I irc Departme -W Trainctl new paramedics and assisted in cootiriuirrg education for currettt paramedics as I'icid TI-3iuirtg ( )fficer from 2001 -2006 Acted as a Second l)river I :ngiuerr l'rtrttt 1991) — hresenl I Firefighter / Paramedic for the Lewisville I" re Department l ire Dispatcher May 2014 — September 2014 20 P.f 'P0 Chief Oi'i'vl,er Pilot Point lire Department Division Chief of Operations, Assistant Chief and Interim I "ire Chief Directed day to day operations, commanded emergency operations, created budget Oversaw final inspection and acceptance of new 2000 gallon water tender Chaired the Brush Truck Spec committee for Pilot Point lire Department Wrote and awarded a grant for $47,000 from the Assistance For Firefighters fund 20S 1,0 - 2013 IIRi efii' lt'i iv P II'tt ttr t!iidk Texas Motor Speedway On - track Firefighter / Jump Medic 2('1X)5 PPPP fiii 1308d dic Texas Motor Speedway 1997 , 2003 Fhiiilli� !"llifighter/ Pat°arnedic i lighland Village lire Department Part tine l"irefighter / Paramedic Responsible for training new paramedics and newly hard fire officers Coordinated renovation and construction of the dormitory tier the fire station Assisted in the transition from an all- voltutteer department to a combination dc1mrtment Substihtted for Captains on leave tf 1: w °6ul °i'mePu Pilot Point Ambulance Service " .994 P " 6 Volunteer F:��'ir �l°i W'ite r Pilot Point Volunteer lire Department Firefighter, Assistant (:lief, and Captain Skills • Computer literate, able to use Windows 7 Pro, M5 Ol]icr 2010, mapping programs a Working knowledge of dealing with underfunded and understalTad lire departments • Falnlltarity In both rural, and sulruihan IIIellghtlrng Urklu,iyuc, • Working knowlt -dge ofc•urrent dispatching systems used by I ewisville Fl11/111) Prof iessIIIon6i Pe ereIII " "IIIc91ii',,S Chief foe Florentino I.1ttle 1 {im Dire Dc- partment Little I-1,1111" k. 469- 853 -4229 Calvin Allison (ret) (.lent' Water, 1'117tla 903 -815 -1582 C litel' Ken Swindle Krum Dire Department Iirnml,'IN 972- 571 -6330 DENCO AREA 9 -1 -1 DISTRICT RESOLUTION DEFINING PROCEDURE FOR APPOINTMENT OF PARTICIPATING MUNICIPALITIES' REPRESENTATIVE TO THE DISTRICT BOARD OF MANAGERS. WHEREAS, Chapter 772, Texas Health and Safety Code provides for the Denco Area 9 -1 -1 District Board of Managers to have "two members appointed jointly by all the participating municipalities located in whole or part of the district.'; and WHEREAS, each member serves a term of two years beginning on October 15t of the year member is appointed; and WHEREAS, one member representing participating municipalities is appointed each year. NOW, THEREFORE BE IT RESOLVED BY THE DENCO AREA 9 -1 -1 DISTRICT BOARD OF MANAGERS: The procedure for participating municipalities to appoint a representative to the Denco Area 9 -1 -1 District Board of Managers shall be the following: 1. Prior to May 15th of each year, the executive director shall send a written notice to the mayor of each participating municipality advising that nominations are open for one of the municipal representatives to the Denco Area 9 -1 -1 District Board of Managers until July 15th of that same year. The notice shall advise the mayors that, for a nomination to be considered, written notification of council action must be received at the Denco office prior to 5:00 p.m. on July 15th of that year. No nominations shall be considered after that time. 2. On July 161h of each year, the executive director shall send written notice to the mayor of each participating municipality providing the slate of nominees to be considered for appointment to the Denco Area 9 -1 -1 District Board of Managers for the term beginning October 15'. The notice shall advise the mayor that the city council shall vote, by resolution from such city, for one of the nominees. Written notice of the council's selection must be received at the district office by 5:00 p.m. on September 15th. No notice will be accepted after that time. 3. The one nominee with the most votes received by the deadline will be the municipality representative appointed for the two -year term beginning October 151. 4. If there is a tie between two candidates with the most votes, a runoff election will be held immediately with the candidate receiving the most votes serving the remainder of the term. The incumbent representative shall serve in that positicAuntil replaced. APPROVED and ADOPTED on this 41h day of Februar l9 airman, B rd of Managers w Secretary, Board of anagers Denco Area 9 -1 -1 District IN- MEMO 11,111 -- *dAp.a-aesykdtt=an pffBr,fe"a ,, a�,�fa�s;tt +ic �^rn�urczyvc sA' - A. -,'k etyroegpewy n 4rjem Current Board Members Structure http:// www.denco.org /currentboard.html 8/7/2015 BOARD MEMBER /l i Jack Miller Denton County Chairman Commissioners 9/30/2016 r� Court w � Denton County Bill Lawrence Commissioners Vice Chairman Court Assistant Chief • s' Terry McGrath Chiefs clation 9/30/2015 r r J1 Secretary Jim Carter J' of , r I /11e I %� OF Mayor Sue Tejml 9/30/2015 r,. , u r 1 Verizon Advisory http:// www.denco.org /currentboard.html 8/7/2015 SAI,egal\Our DocLitiieiits\Resolutions\15\911 vote for nieniber.doc RESOLUTION NO. A RESOLUTION NOMINATING ONE MEMBER TOTHE BOARD OF MANAGERS OF THE DENCO AREA 9 -1 -1 DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Section 772, of the Health and Safety Code, provides that two voting members of the Board of Managers of an Emergency Communication District shall be appointed jointly by participating municipalities located in whole or in part in the District; and WHEREAS, the City of Denton, Texas wishes to vote for a member to said Board; NOW, THEREFORE, THE COUNCII.., O.FTI IE CITY OF DENTON HEREBY RESOI...VES: SECTION 1. 'The City of Denton, Texas hereby votes for Sue 'I'ejml as a member to the Board of Managers for the Denco 9-1-1 Emergency Communication District. SECTION 2. 'This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. Cl IRIS WATT S, MAYOR ATTEST: JENNIFER IENNIFER WALTERS, CITY SECRETARY BY: 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 -697, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving the Meet and Confer Agreement between the City of Denton and the Denton Police Officers Association, and providing an effective date. BACKGROUND As you are aware, over the past few months City management has been working with the Denton Police Officers Association to negotiate a renewal to the existing Meet and Confer Agreement. The following is a brief history of the Meet and Confer process in Denton and an update as to the current status of our discussions. House Bills 304 and 2892 granted certain municipalities the option to meet and confer with fire and /or police associations and became effective in September 2005. While the bills do not require the City or the fire and /or police association to engage in a meet and confer process, it gives the legislative authority for the parties to discuss topics such as salaries, benefits, hiring, discipline, and other conditions of employment that are governed by the civil service provision of the Texas Local Government Code and override state law in any resulting contracts entered by the Parties. In November 2005, the Denton Police Officers Association petitioned the City Council to act as the sole and exclusive bargaining agent for non - exempt employees of the Denton Police Department. The City entered into meet and confer negotiations with the Denton Police Officers Association following a Council resolution recognizing them as the exclusive bargaining agent for meet and confer on December 13, 2005. On September 26, 2006, Council adopted an ordinance approving the first three (3) year Meet and Confer Agreement, as ratified by the Denton Police Officers Association. Prior to expiration of that contract, the City again entered into meet and confer negations with the Denton Police Officers Association. On September 22, 2009, Council adopted an ordinance approving the second three (3) year Agreement. Subsequent amendments to that agreement extended the term until September 30, 2015. The current Police agreement will expire on September 30, 2015. Consequently, in May 2015, management representatives began meeting with the Denton Police Officers Association to renegotiate the agreement with the goal of completing negotiations in mid -July. We had very successful discussions and concluded negotiations with tentative agreements for contracts with a four year term on July 17, 2015. Through the work during this process, the City and the Police Officers Association developed an Agreement that contains 15 specific articles dealing with topics such as hiring, promotion, compensation, and discipline, which are City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -697, Version: 1 mutually beneficial. A copy of the agreements and a summary of the specific provision of each agreement are attached. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The City Council met with staff and legal counsel regarding the legal aspects of the meet and confer process at the following closed session meetings: 1. June 9, 2015 (Meet and Confer legal briefing) 2. July 28, 2015 The week of August 3 2015, the Police Officers Association held a ratification vote for approval of the agreements. Out of 158 ballots, 152 ballots were returned. The agreement was approved with 150 votes in favor of the agreement and 2 votes against the agreement. FISCAL INFORMATION The financial impact of the agreement related to any pay provisions or wellness initiatives will be included in the proposed budget. RECOMMENDATION Staff recommends City Council approve the 2015 -2019 Police Meet and Confer Agreement. FYHIRITC 1. Police Meet and Confer Agreement Summary Matrix 2. Ordinance and Police Meet and Confer 2015 -2019 Agreement Respectfully submitted: Jon Fortune Assistant City Manager Prepared by: Jessica Rogers Assistant to the City Manager City of Denton Page 2 of 2 Printed on 8/13/2015 O N i O N_ t' Sr bA Sr C O C .v, O PLO O O Sr PLO yt' m ct rA rA rA t4l �np ct o o u rA W o ".rA rA rA ct O � �, � o � Ct ct ct O rA O � U ct rA rA m rA m¢ .� rA � rA p c" - U p,,, = O O« rA 3 p v rA rA rA rA �r r N rA N O «3 «3 U p m O " •� EA rA ct 14-4 cd N N N U 3 N N U v O U O «3 U N O ct 4, O ct ct u N N m O N 4, U v «3 4-i cd � O � �' � N "� � r, Q N . ,-. «3 v� O ct rA ct rA ct ct '. rA O a � O A. cc1 O U � •� O N U U 4-a O +� s s, O U U N O N N N O —'4 bA m N f, �' N m m p O ct ct �; O c O O N _ +� N U O m ct O O O O cd N cd m ct 'A ct rA ct ct N O O O O � A•i O � O N ct ct °' o ct ct ct 2 ct ct ct ° °�' o v o ct >' �. ct i �, �, �, o It Ct u ct rA ct ct o° ct �' D, W m cc1 4_ _ v W U U ct ct o ° W — c cq ct c a� a� cd �, In �. ° U ct rA onU o� ct rA t+ o cn� o C41 ° U ° Q 4�J o a� a� ct rA `� 'A ° rA t4l 141 � � a� �� � 'u 'A I) ° c ° 'A °� O 4� O C. cd A° 'A cd M� R3 5- . m O ' m ct N 0 0 cr3 m V U c� cC3 E O N p- N ct ^' 'C3 ¢, U cc1 U ,� • ^ti � � � 4� N p. s--r U � '" s-r U «3 � s., o°o `4-4 O 4° ct N U U N N 41 ct V O ct 4l 4a ^'N 'A Ct O O N A U ct sUU. U c} 4 cd A. CL ct bA m O N 'C3 ccf R3 �, o3 c O U p Ct S�. U U N 'o g 'C3 cc3 'C3 m O y N +� �' ' N N ° +� � a, "� v� . �, m �' a, ct 1--� "C3 O N O U.'A N i N N � cH 4� «3 r, � m N N U • r, O �4. ct U^ N O bA U bA F- N bA v� N O N ct N N U cH 40 U � � c N N «3 N U ci Q c O O C O U � � U o � � ct ct •� ct E N r U U >O ct O U U� N N U O `n Ct p„ r �"' � U U � U •� O N �� N Clt s� .0 03 s-� �" m � O U '� � • i U cd a, a, U N r� bA z~ ct 03 03 U U U p U bA �., DU sD. m'A a p. U U O O O U Ct 421 U 4. N 4a O U yU O U U m p— bA p. m U U � U b�A U j O ^p O U �jj C8 N ct O bA 4° rA � U c� O � vUi rA cnU U U U U U U U O O � N— U R" - Uri a L� W ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING THE MEET AND CONFER AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON POLICE OFFICERS ASSOCIATION; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute the Meet and Confer Agreement between the City and the Denton Police Officers Association in substantially the form of the agreement attached hereto and made a part of this ordinance for all purposes (the "Agreement "). SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 52015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY S APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Meet and Confer Agreement Between The City of Denton and Denton Police Officers Association Fiscal Years 2015 -2016; 2016 -2017; 2017 -2018; and 2018 -2019 TABLE OF CONTENTS DEFINITIONS................................................................................................. ............................... 2 ARTICLE 1 AUTHORITY AND RECOGNITION ....................................... ............................... 3 ARTICLE2 HIRING ....................................................................................... ............................... 4 ARTICLE3 PROMOTION ............................................................................. ............................... 7 ARTICLE 4 APPOINTMENT OF PERSONNEL ........................................ ............................... I I ARTICLE5 DISCIPLINE ............................................................................. ............................... 12 ARTICLE 6 CHANGE IN SHIFT ASSIGNMENT ...................................... ............................... 13 ARTICLE7 COMPENSATION ................................................................... ............................... 14 ARTICLE 8 COURT TIME AND CALL BACK ......................................... ............................... 16 ARTICLE 9 ASSIGNMENT PAY AND SPECIALTY PAYS .................... ............................... 17 ARTICLE 10 SAFETY AND HEALTH ....................................................... ............................... 20 ARTICLE l I CIVIL SERVICE COMMISSION .......................................... ............................... 22 ARTICLE 12 LABOR/MANAGEMENT RELATIONS .............................. ............................... 23 ARTICLE 13 CONTRACT INTERPRETATION DISPUTE RESOLUTION PROCEDURE... 24 ARTICLE 14 TERM OF AGREEMENT ...................................................... ............................... 28 ARTICLE 15 SAVINGS CLAUSE AND PREEMPTION PROVISION ..... ............................... 29 EXHIBIT A PANEL OF ARBITRATORS ................................................... ............................... 31 DEFINITIONS 1. "Agreement" means the Meet and Confer Agreement entered between the Denton Police Officers Association and the City of Denton. 2. "Association" means the Denton Police Officers Association, its elected leaders and its collective membership. 3. "City" means the City of Denton, its mayor, city council members, city manager, police chief and those persons designated by the City of Denton to manage the city and its police department. 4. The term "commission" means the Denton Fire Fighters' and Police Officers' Civil Service Commission. 5. The term "days" refers to calendar days unless otherwise specified. 6. The term "Department" means the Denton Police Department. 7. The term "Department head" means the Chief of the Denton Police Department, designee, or an acting Chief of the Denton Police Department. 8. The term "director" means the director of the Denton Fire Fighters' and Police Officers' Civil Service Commission. 9. The term "Local Rule" means the Local Rules and Regulations of the Denton Fire Fighters' and Police Officers' Civil Service Commission. 10. The term "Officer" means a member of the Denton Police Department who was appointed in substantial compliance with Chapter 143 of the Texas Local Government Code who is entitled to civil service status under section 143.005 of the Texas Local Government Code. 11. "Parties" means the City of Denton and the Denton Police Officers Association. 0a AR TICI F. 1 AUTHORITY AND RECOGNITION The City of Denton recognizes the Denton Police Officers Association as the sole and exclusive bargaining agent for the covered Police Department police officers described in the petition for recognition, excluding the head of the law enforcement agency and excluding the employees exempt under subsection (b) of section 142.058 of the Texas Local Government Code, in accordance with subchapter B of Chapter 142 of the Texas Local Government Code and the petition. It is intended to include all permanent paid employees of the Police Department who have been hired in substantial compliance with provisions of Chapter 143 of the Texas Local Government Code but does not include civilians or other employees. It is not intended to deny local control by the City except as provided by this Agreement under section 142.059 of the Texas Local Government Code. In consideration of this authority, the Denton Police Officers Association agrees to act impartially and without discrunination on behalf of all affected police officers, irrespective of their membership status in the Denton Police Officers Association. 3 ARTICLE 2 HIRING Section 1. Department List In this Article "Department List" shall mean the list of applicants who made a passing grade on the written examination ranked from highest to lowest including any applicable military points, and tiebreakers applied to a passing grade, and shall not mean the eligibility list from which an applicant may be appointed. Section 2. Application of Certifications a. From the Department List, the Department head or designee shall identify the persons with a score of 90 -105 and identify those persons as Group A. Within Group A, the Department head or designee shall identify the persons holding a Texas Peace Officer Certification in the following rank order highest to lower: Master Peace Officer Certificate, Advanced Peace Officer Certificate, Intennediate Peace Officer Certificate and Basic Peace Officer Certificate above those without a Texas Peace Officer Certification within Group A on the Department List. b. From the Department List, the Department head or designee shall identify the persons with a score of 80 -89 and identify those persons as Group B. Within Group B, the Department head or designee shall identify the persons with a Texas Peace Officer Certification and rank those persons according to the level of their Texas Peace Officer Certification in the following rank order highest to lowest: Master Peace Officer Certificate, Advanced Peace Officer Certificate, Intermediate Peace Officer Certificate and Basic Peace Officer Certificate above those without a Texas Peace Officer Certification within Group B on the Department List. C. From the Department List, the Department head or designee shall identify the persons with a score of 70 -79 and identify those persons as Group C. Within Group C, the Department head or designee shall identify the persons with a Texas Peace Officer Certification and rank those persons according to the level of their Texas Peace Officer Certification in the following rank order highest to lowest: Master Peace Officer Certificate, Advanced Peace Officer Certificate, Intermediate Peace Officer Certificate and Basic Peace Officer Certificate above those without a Texas Peace Officer Certification within Group C on the Department List. d. Once the Department head or designee completes the ranking according the certification under his section, the list will be referred to as the "certification list" and will be forwarded to the commission. The director shall certify the list, making it the "eligibility list," and shall provide to the municipality's Department head, or designee, the names of the persons on the eligibility list. Section 3. Selection for Beginning Positions a. From those persons holding a Texas Peace Officer Certification ranked within Group A, the Department head shall appoint the person highest on the eligibility list if that person has otherwise satisfied all of the requirements for eligibility for a beginning position in the Police M Department unless passed over under section 143.026 of the Texas Local Government Code. The Department head or designee shall process in descending order the remainder of persons holding a Texas Peace Officer Certification for any additional beginning positions to be filled. b. Once the remainder of the persons holding a Texas Peace Officer Certification in Group A is exhausted, the remainder of the persons in Group A shall be processed if there are additional beginning positions to be filled. The remainder of persons in Group A that do not hold a Texas Peace Officer Certification will be processed in descending order based upon their rank on the eligibility list. C. If there are additional beginning positions to be filled after steps a and b are completed above, from those persons holding a Texas Peace Officer Certification ranked with Group B, the Department head shall appoint the person highest on the eligibility list if that person has otherwise satisfied all of the requirements for eligibility for a beginning position in the Police Department unless passed over under section 143.026 of the Texas Local Government Code. The Department head or designee shall process in descending order the remainder of persons holding a Texas Peace Officer Certification for any additional beginning positions to be filled. d. Once the remainder of the persons holding a Texas Peace Officer Certification in Group B is exhausted, the remainder of the persons in Group B shall be processed if there are additional beginning positions to be filled. The remainder of persons in Group B that do not hold a Texas Peace Officer Certification will be processed in descending order based upon their rank on the eligibility list. e. If there are additional beginning positions to be filled after steps c and d are completed above, from those persons holding a Texas Peace Officer Certification ranked within Group C, the Department head shall appoint the person highest on the list if that person has otherwise satisfied all of the requirements for eligibility for a beginning position in the Police Department unless passed over under section 143.026 of the Texas Local Government Code. The Department head or designee shall process in descending order the remainder of persons holding a Texas Peace officer Certification for any additional beginning positions to be filled. f. Once the remainder of the persons holding a Texas Peace Officer Certification in Group C is exhausted, the remainder of the persons in Group C shall be processed if there are additional beginning positions to be filled. The remainder of persons in Group C that do not hold a Texas Peace Officer Certification will be processed in descending order based upon their rank on the eligibility list. Section 4. Commission Rules and Statutory Override a. The commission shall adopt Local Rules in accordance with this article. b. Sections 1, 2 and 3 of this article shall supercede section 143.025 of the Texas Local Government Code to allow for the creation of the eligibility list to be based upon Texas Peace Officer Certifications after passing the written examination in accordance with this article, and section 143.026 to provide for appointment and notification of a pass -over by the Department head using the process outlined in Sections 1, 2 and 3 of this article. 5 Section 5. Probationary Period A person appointed to a beginning position in the Police Department must serve a probationary period of 18 months beginning on that person's date of employment as a police officer, or academy trainee. This section of the article shall supercede Sections 143.027(a) and 143.027(b) of the Local Government Code. Section 6. Reappointment after Resignation The commission shall adopt Local Rules to allow an Officer who voluntarily resigns from the Department and meets the eligibility requirements for a vacant position to be reappointed to the Department at the sole discretion of the Department head. For purposes of this section, the age eligibility requirement provided for in section 143.023(c) shall not apply. This section of the article shall supercede Sections 143.023(c) of the Local Government Code. 3 A R TICI .F. A PROMOTION Section 1. Promotions to Sergeant Rank a. Time In Rank Pre- Requisite. An Officer is not eligible for promotion to Sergeant rank unless the Officer has served in the Department in the next lower rank for at least three years immediately before the examination date. This section supercedes section 143.031 of the Texas Local Government Code to increase the requisite time of service to a three year pre - requisite in the next lower rank before taking the Sergeant promotional examination. b. Limited Scope of Appeal. Appeals to the commission under section 143.034 of the Texas Local Government Code shall be limited to quoted source material attributable to the referenced examination question. This section supercedes section 143.034(a) to limit appeals only to the written examination and limit the written examination scope of appeal to only quoted source material attributable to the referenced examination question. Section 2. Promotions to Lieutenant Rank a. Intent. In adopting this article, the Parties agree to implement a promotional system for Lieutenant rank using a Research Project in addition to the written examination. The Parties believe the addition of the Research Project will improve the selection process and provide promotional candidates a fair opportunity to display skills and abilities that serve as additional good indicators that they will perform well in the position of Lieutenant. b. Adoption and Publication of Rules. The commission shall adopt Local Rules in accordance with this article. C. Lieutenant Promotional Process To Include Research Proiect. 1. Written Examination (100 points possible) A maximum of 100 points of the promotional candidate's score will be based on the multiple choice score of the written examination. 2. Application of Seniority Points (10 points possible) Each promotional candidate is entitled to receive one point for each year of seniority as a classified police officer in the Department, with a maximum of 10 points. 3. Review and Appeal of Written Examination On request, each promotional candidate is entitled to examine his/her own promotional examination and answers, the examination grading, and the source material for the examination. If dissatisfied, the candidate may appeal, within five business days, to the commission for review in accordance with 143.034 Local Government Code. Appeals to the commission under section 143.034 of the Texas 7 Local Government Code shall be limited to only quoted source material attributable to the referenced examination question. 4. Continuation in Promotional Process Applicable seniority points will be added to each promotional candidate's raw score on the written examination for a cumulative test score (maximum 110 points). Each promotional candidate with a cumulative test score of 70 points or higher is considered to have passed the written examination and is eligible to continue in the promotional process. 5. Promotional Test Proctor The Promotional Test Proctor will be the Lieutenant assigned to the Department's Office of Professional Standards, or another Lieutenant as appointed by the Department head. 6. Candidates' Selection of Assessor Panel All eligible promotional candidates, as determined in subsection 4, will meet with the Promotional Test Proctor and review a list of available assessors. The candidates, by majority vote, will select the assessor panel that will consist of the following: a. Two (2) members of the Police Department Executive Staff, b. Two (2) Police Department Lieutenants; c. Two (2) members of the Denton Police Officer's Association Board; and d. Two (2) City of Denton Senior Department Supervisors. The Department head will sit on the assessor panel and participate in the grading process for tiebreaker purposes. 7. Selection of Research Project Topic Prior to the administration of the written test, the Department Executive Staff will compile at least 3 research topics involving law enforcement and /or community issues. At the conclusion of the assessor panel selection, the Promotional Test Proctor will draw a topic at random from the available list of research topics. The drawn topic will be used by all promotional candidates for the Research Project defined to include both the written exercise and oral presentation. 8. Written Exercise (55 points possible) Each promotional candidate will research and prepare a written report on the research topic, including background information, current trends, identified issues, recommended course(s) of action, and the financial impact of any issues and /or recommendations. The written report will be submitted using a format provided to each candidate by the Department. The written exercise will be due no later than 5 :00 pm on the 10th business day after the selection of the assessor panel. 9. Oral Presentation (55 points possible) Each promotional candidate, by random draw order, will make an oral presentation of their written report to the assessor panel. The presentation will be limited to 20 minutes, with an untimed question/answer session at the conclusion of the presentation. The presentation can include, but does not require, the use of appropriate audio /visual aids. Presentations will be scheduled beginning the 15'11 business day after the selection of the assessor panel. The presentation schedule will be established at the meeting when the research topic is drawn. 10. Grading Matrix The written exercise and the oral presentation will be graded using a standard grading matrix recommended by a joint Labor Management Committee consisting of two (2) representatives appointed by the Department head and two (2) representatives appointed by the DPOA Board to the Department head. The grading matrix will be approved by the Department head and available for review by the promotional candidates prior to the written examination. 11. Scoring Individual assessor scores (other than the Department head) for each candidate's written exercise and oral presentation will be totaled (maximum 110 possible points). The highest and lowest assessor score for each candidate will be dropped, and the remaining six (6) scores will be averaged. Average scores will be rounded to one decimal place with scores of .5 or more being rounded to the next highest level. (For example: 98.55 would be rounded to 98.6 and 98.54 would be rounded to 98.5). The average score will be the candidate's cumulative score for the Research Project. Each promotional candidate's cumulative score from the Written Examination will be added to the candidate's cumulative score for the Research Project to determine the final promotional test score. 12. Appeal or Grievance A promotional candidate may not grieve, appeal or dispute the Research Project component of the promotional process before an administrative or judicial body. Likewise, no grievance under this Agreement may be filed concerning the Research Project. 13. Tiebreakers In the event of a tie between two (or more) candidate's final promotional test scores, the first tiebreaker will be the Department head's Research Project Score for each candidate. In the event of a tie in the Department head's scoring of each candidate's Research Project, the second tiebreaker will be tune -in -grade for each candidate in the Sergeant Rank. 14. Selection for the Lieutenant Rank Promotional candidates will be ranked on the eligibility list and corresponding certified list based on the final promotional score, including the resolution of any tiebreakers. The Department head shall appoint the eligible promotional candidate having the highest grade on the eligibility list unless the Department head has a valid reason for not appointing the person. A vacancy shall be filled within 60 days, if an eligibility list is in existence, or 90 days if an eligibility list does not exist after the date the vacancy occurs. N d. Military Duty. The corrunission may adopt Local Rules providing for the efficient administration of tests for promotional candidates for Lieutenant rank who are members of the armed forces serving on active military duty as provided by section 143.032(b)(1)(2) of the Texas Local Government Code. e. Appeal or Grievance. A promotional candidate may appeal the multiple choice portion of the written examination under section 143.034 of the Texas Local Government Code as limited in subsection c (3) above but may not appeal or dispute the Research Project component of the promotional process before an administrative or judicial body. Likewise no grievance under this Agreement may be filed concerning the Research Project. The invalidation of any question or component of the written examination shall not invalidate the remainder of the Promotional process. f. Statutory Override. Sections 2(a) -(e) of the article supercede the following sections of The Texas Local Government Code: section 143.032(a) to provide for the scoring of the Research Project created under this article, sections 143.032(b)(1) and 143.032(c) to allow for the Research Project process, to allow for clarifying questions to be asked in the Research Project process and to provide for the oral presentation and question/answer, sections 143.032 (d) and (e) to expand the scope of testing and the sources of materials in the Research Project, section 143.0320 to expand the preparation and composition allowances to include the Research Project and to provide for more time for scoring, section 143.032(g) to allow the Department Executive Staff and Department head's participation in preparing the Research Project of the promotional process, section 143.033(a) to provide for scoring of the Research Project outside the presence of the promotional candidates, section 143.033(c) to provide for the creation of the eligibility list based on both multiple choice and Research Project and for the potential score to be based on less than 100 points in the event a question is invalidated, section 143.033(d) to provide for more time to post the grades of the eligibility list, and section 143.034(a) to limit appeals only to the written examination and limit the written examination scope of appeal to quoted source material attributable to the referenced examination question. Section 3. Eligibility List Fonvarded at One Time for Nonentry Positions a. Intent. This section of the article is intended to omit the administrative process of providing three names at a time and instead provide a process where all names of the persons on the eligibility list are certified and provided at once when filling a vacancy for a nonentry position in the Department. b. Process. When a vacancy occurs in a nonentry position that is not appointed by the Department head, the director, on request by the Department head or designee, shall certify to the Department head the names of the eligibility list. C. Statutory Override. Sections 3(a) -(c) of the article supercede section 143.036 of the Texas Local Government Code to allow for the entire eligibility list to be forwarded at once. Ll ARTICI F. d APPOINTMENT OF PERSONNEL All Deputy Chief and Assistant Chief positions may be filled by appointment by the Department head pursuant to the process provided for in Section 143.014 of the Texas Local Government Code. Positions in the ranks below Deputy Chief are filled under the statutory process in Section 143 except as otherwise provided in this Agreement. This article supercedes section 143.014(b) and section 143.014(c) of the Texas Local Government Code. ARTICLE 5 DISCIPLINE Section 1. Limitations on Acts Not Related to Criminal Activity and Time To Investigate Charges In the original written statement and charges and in any disciplinary hearing conducted under this Agreement or Chapter 143, the Department head has two hundred and forty (240) days from the date the act (not related to criminal activity) occurred to discover the act. The Department head shall have one hundred and eighty (180) days from the date of discovery, as set forth in the preceding sentence, to investigate and take disciplinary action for the act (not related to criminal activity). This section shall supersede the first sentence of section 143.052(h) of the Texas Local Government Code. Nothing in these sections affects the remainder of section 143.052(h) or affects section 143.056 of the Texas Local Government Code. Section 2. Alternative Discipline Officers suspended up to a maximum of five (5) working days, at the Department head's discretion, may forfeit either accumulated vacation, compensatory or sick time equal to the suspension to serve the suspension with no loss of paid salary. The officer shall have ten (10) calendar days from receipt of notice of the suspension to decide whether or not he or she wishes to forfeit accumulated leave or exercise his or her appeal rights pursuant to Chapter 143 Local Government Code. No appeal to the commission or to arbitration may be instituted on suspensions where the officer has forfeited accumulated vacation, compensatory or sick time pursuant to the terms of this section. The forfeited vacation, compensatory, or sick time will not constitute hours worked. This section supercedes section 143.052 and section 143.053 of the Texas Local Government Code to the extent either of those sections do not allow for the process outlined in this section. Section 3. Written Statement If the Department head suspends an Officer, a copy of the statement giving the reasons for the suspension shall be delivered in person by the Department head, or his/her designee, to the suspended Officer. The Department head will file the written statement with the commission director within one hundred twenty (120) hours alter the hour of suspension which will deem the statement to be filed for purposes of section 143.052. Unless the Officer appeals the suspension to the commission, the Parties agree the director will not forward the written statement to the commission. This section of the article shall supersede section 143.052(c) of the Texas Local Government Code in that filing with the director will satisfy 143.052(c). This section also shall supersede 143.052(c) requiring delivery of the statement specifically by the Department head to the officer. This section supercedes section 143.052(e) of the Texas Local Government Code in that, in instances where the Officer does not choose to appeal to the commission, the written statement will only be filed with the director and not forwarded to the commission. 12 ARTICLE 6 CHANGE IN SHIFT ASSIGNMENT The City reserves the exclusive right to determine procedures, tuning and standards for all employee transfers and reassignments; provided, however, Officers shall receive at least fourteen (14) calendar days advance notice of transfer or reassignment that result in working different hours of a shift schedule. An Officer may voluntarily waive the requirement to an advance notice. In the event of an emergency the Department head or designee may require an Officer to work at any given time without the requirement of notice given to an Officer. An emergency is an unexpected happening or event or an unforeseen situation or crisis that calls for immediate action and requires the Department head to order an Officer to work a shift other than the Officer's nonnal scheduled shift assignment. 13 ARTTC I .F. 7 COMPENSATION Section 1. Base Pay Philosophy It is the desire of the City to recognize that the employees of the City of Denton Police Department perform their responsibilities at a level that is above the typical metroplex Police agency. As such, it is the desire of the City to maintain a pay philosophy that exceeds the average metroplex pay for Police officers while at the same time recognizing the financial limitations facing the City due to this challenging economic period. Section 2. Comparator Cities Arlington, Carrollton, Fort Worth, Frisco, Garland, Grand Prairie, Irving, Lewisville, McKinney, Mesquite, Plano and Richardson shall continue to be used as comparator cities for the salary survey to be conducted each year of this contract. The City and Association shall convene a Labor/Management Pay Subcommittee to perform a survey in May of each year of the Agreement upon which consideration for the proposed base salary adjustments for the following fiscal year shall be calculated. Based on the survey infortnation of the comparator cities, the average of base pay for minimums and maximums for each rank shall be calculated and proposed for approval as a part of the budget process. Proposed increases may be limited to the average base pay percentage increase for non -civil service City employees approved by the City Council in the annual budget. Section 3. Compensation Proposal Calculation (a) The compensation for Police Officer /Recruit, Sergeant, Lieutenant and Captain (conditioned upon the creation of a Captain classification) shall be proposed on the basis of the following calculations: The recommended monthly base pay scale shall be calculated by the salary survey conducted in May each year of the Agreement, utilizing the average minimum base salary and the average maximum base salary for each rank of the twelve (12) comparator cities as specified in this contract, plus five percent (5 %). The recommendation will propose that the minimum and maximum base pay for each rank will receive an increase (should an increase be required) to match the survey average plus five percent (5 %). The steps between the minimum and maximum steps will be recalculated to maintain equal separation between any new minimum and maxunum steps. (b) Increases recommended in subsection 3(a) may be equivalent to the average base pay increase budgeted for non -civil service City employees. Should the City Council approve a budget that does not include base pay increases for non -Civil service employees, the ranks of Police Officer /Recruit, Sergeant, Lieutenant and Captain shall not receive any base pay increase 14 regardless of the calculated amount necessary to reach minimum and maximum rates plus five percent (5 %). (c) Should the City Council approve a budget that includes lump sum pay increases instead of an increase to base pay to non -civil service City employees, the ranks of Police Officer/Recruit, Sergeant, Lieutenant and Captain will receive a lump sum payment equal to the average lump sum increase for non -civil service employees instead of an increase to base pay. Section 4. Funding Obligations Depending upon the financial forecasts, the City may implement the compensation recommendations in section 3 between the first pay period of October and the first pay period of April of each fiscal year. The City presently intends to continue this Agreement each fiscal year through its term, to pay all payments due, and to fully and promptly perform the obligations of the City under this Agreement. All obligations of the City shall be paid only out of current revenues or any other funds lawfully available for those obligations, including tax revenues reasonably anticipated at equal or higher total gross amounts as were collected in each preceding fiscal year respective to each year of the Agreement, and appropriated for such purpose by the City Council, in compliance with the Texas Constitution, Article XI, Sections 5 and 7. Following the adoption of the annual budget that may establish a pay increase, should the City Council find it fiscally necessary to reduce base pay for non -civil service City employees, or implement other cost saving measures such as mandatory furloughs or a reduction -in- force, the increase recommended under this Article shall be reduced. 15 ARTICLE 8 COURT TIME AND CALL BACK Section 1. Officers while off duty who are called back to duty shall be paid a minimum of two (2) hours or actual time worked, whichever is greater. Section 2. Officers while off duty who are required to perform phone consultations with the District Attorney's Office shall be paid a minimum of one (1) hour or actual time worked, whichever is greater. Section 3. Officers while off duty who are required to give testimony in court about events arising out of their employment shall be paid a minimum of three (3) hours or actual tune worked, whichever is greater. Section 4. Any hours meeting established criteria for overtime compensation will be paid at one and a half (1 -1 /2 times) the Officer's regular rate of pay. 16 A D'Ti!`T V O ASSIGNMENT PAY AND SPECIALTY PAYS Section 1. Assignment Pay a. Field Training Officer Pay Each Officer assigned as a Field Training Officer shall be granted pay of $100.00 per month. b. Tactical Team Pay Each Officer assigned to the Tactical Team shall be granted pay of $100.00 per month. c. Hostage Negotiator Pay Each Officer assigned to the Hostage Negotiator Team shall be granted pay of $100.00 per month. d. Administrative Services Pay Each Officer assigned to serve as an on -call Public Information Officer or in an on -call capacity as the Department's IT Specialist shall be granted pay of $100.00 per month. e. Traffic Unit On -Call Pay Each Officer assigned to the Traffic Section that is required to respond to a call back situation for periods of at least one week at a time and would be subject to discipline if they fail to answer, respond, or are unfit to respond during their assigned period, shall be granted pay of $100.00 per month. This includes the Traffic Sergeant, who is considered to be on -call except when relieved of the duty to respond for specified periods of time. f. Criminal Investigations Bureau On -Call Pay Any Officer assigned to the Criminal Investigation Bureau (CIB) that is required to respond to a call back situation for periods of at least one week at a tune and would be subject to discipline if they fail to answer, respond, or are unfit to respond during their assigned period, shall be granted pay of $100.00 per month. This includes the CIB Sergeants that are assigned to an on -call rotation and are required to respond as stated above. This includes Special Operations officers who are considered to be on -call by the nature of their assignment. g. Applicability Officers may be granted a maximum of three (3) separate assignment pays per month from Sections (a) through (f). 17 Section 2. Specialty Pay a. Canine Pay Each assigned Canine Officer approved by the Department head shall be granted pay of $100.00 per month. b. Bilingual Pay Bilingual pay will be paid at the rate of one hundred dollars ($100.00) per month for oral skills or the rate of one hundred fifty dollars ($150.00) per month for oral and reading skills for Officers certified under standards established by the Chief and assigned to the bilingual program. The bilingual program shall include Spanish and any language designated by the Chief Officers will not be paid cumulatively if they are certified in more than one language. Section 3. Certification Or Education Pay Each Officer eligible for Certification or Education pay shall be granted either certification or education pay commencing the first pay period after: (1) submission of the proof of eligibility and, (2) verification by the Department head. Education eligibility requires successfully completed courses at an accredited college or university. If eligibility is acquired during a fiscal year, the monthly rate shall be prorated from the first day of the pay period following the date of submission of the proof of eligibility provided. Effective the fast pay period of each fiscal year, Certification or Education pay shall be as follows: (a) Fiscal Year 2015 -2016: Certification: Intermediate— Police Advanced — Police Master — Police Education: 30 hours toward degree Associates Degree Bachelor's Degree $840.00 annualized rate $ 70.00 monthly rate $1,560.00 annualized rate $ 130.00 monthly rate $2,280.00 annualized rate $ 190.00 monthly rate $480.00 annualized rate $ 40.00 monthly rate $840.00 annualized rate $ 70.00 monthly rate $1,560.00 annualized rate $ 130.00 monthly rate 18 Master's Degree $2,280.00 annualized rate $ 190.00 monthly rate (b) Fiscal Year 2016 -2017: Each certification and education monthly rate shall increase by $10.00. (c) Fiscal Year 2017 -2018: Each certification and education monthly rate shall increase by $10.00. (d) Certification and education pays are not cumulative. The Officer shall receive the higher of the amounts. Section 4. Statutoty Override Sections 1, 2 and 3 of this article supercede sections 143.041(c)(2), 143.041(C)(3), 143.041(c)(4), 143.042, 143.043 and 143.044(b) and 143.044(c) of the Texas Local Government Code to provide for the pay as outlined above. 19 AR TILT F. 1(1 SAFETY AND HEALTH Section 1. Intent It is the desire of the City and the Association to recognize that physical fitness is mutually beneficial to the health and wellbeing of employees, in addition to lowering potential costs of healthcare and work related injuries and agree that a voluntary participation program for physical fitness incentive pay shall be established. The intent of this program is not to create an entitlement but to further improve the health and wellness of the Department. Section 2. Joint Committee on Physical Fitness Recommendations The Joint Committee on Physical Fitness shall recommend the structure of a program for an annual physical which includes a combination of a medical assessment and fitness assessment as approved by the Department head. The Joint Committee on Physical Fitness shall be comprised of two (2) members appointed by the Association, two (2) members appointed by the Department head, and a representative from Human Resources. In addition, the Joint Committee on Physical Fitness shall make recommendations on prerequisites to participate in the program. Section 3. Tiered Performance Incentive Pay A prerequisite for the incentive pay requires the Officer to participate in the City's annual Health Risk Assessment (blood draw and follow up). a. Superior Rating. Effective January 1, 2016, an Officer who receives a "Superior" rating on his/her annual physical which includes a combination of the Officer's medical assessment and fitness assessment shall receive a one -time lump -sum payment of six hundred dollars ($600) for that rating. The lump -sum payment shall be paid in the month of November following the receipt of the "Superior" rating. b. Excellent Rating. Effective January 1, 2016, an Officer who receives an "Excellent" rating on his/her annual physical which includes a combination of the Officer's medical assessment and fitness assessment shall receive a one -time lump -sum payment of five hundred dollars ($500) for that rating. The lump -sum payment shall be paid the in the month of November following the receipt of the "Excellent" rating. e. Good Rating. Effective January 1, 2016, an Officer who receives a "Good" rating on his/her annual physical which includes a combination of the Officer's medical assessment and fitness assessment shall receive a one -time lump -sum payment of four hundred dollars ($400) for that rating. The lump -sum payment shall be paid in the month of November following the receipt of the "Good" rating. 20 Section 4. Evaluation The Joint Committee on Physical Fitness shall evaluate the program annually to determine effectiveness and shall make potential recommendations to the Department head for modifications or adjustments. Section 5. Statutory Override Sections 1, 2, 3 and 4 of this article supercede sections 143.041(c)(6) and 143.044(d) of the Texas Local Government Code to provide for fitness incentive pay as outlined above. 21 A R TICI .F. 11 CIVIL SERVICE COMMISSION Section 1. Commission It is the desire of the City and the Association to broaden the criteria qualifying persons eligible to serve on the commission. As a result, a person may be appointed to the commission who has held public office within the preceding three years provided that the public office held by the person was not an elected office. This article supercedes section 143.006(c)(5) of the Texas Local Government Code. ON ARTICLE 12 LABOR/MANAGEMENT RELATIONS Each Party shall designate three (3) representatives to serve on a joint Labor/Management Committee ( "Committee "). This Committee shall meet quarterly at agreeable tunes and places to discuss matters of mutual concern. Such discussion shall not be tantamount to, or an extension of, the bargaining process, but shall be for the purpose of encouraging productive relations between the parties and the improvement of the public safety services to the community. A minimum of two (2) members from each party must be present for a meeting to be held. The Department head will make reasonable efforts to accommodate requests by Association members to attend if they are on duty. Both parties understand and agree that Committee meetings are not required on any issue, except where provided for in Article 3 of this Agreement, and are not a condition nor limitation on the management rights to make and enforce policies, rules, regulation, or operational decisions. 23 ARTiCI F. 11 CONTRACT INTERPRETATION DISPUTE RESOLUTION PROCEDURE Section 1. Scope of Procedure The City and Association recognize that from time to time disagreements between the Parties may arise as to the application or interpretation of this Agreement. The Parties therefore agree that the purpose of this dispute resolution procedure is to provide a just and equitable method for resolving disagreements between the Parties regarding the application or interpretation of the provisions of this Agreement. Only matters involving the interpretation, application, or alleged violations of a specified provision of this Meet and Confer Agreement shall be subject to this dispute resolution procedure. Any matters for which the right of appeal is afforded by Subchapter D of Chapter 143 of the Texas Local Government Code are excepted from the scope of this Article. Section 2. Application of Procedure If the Association has a dispute with the City regarding this Agreement, the Association should reduce the dispute to writing and deliver it to the City's designated representative, who shall be is Department head or designee. An Officer may not file a request for contract dispute resolution directly with the City; all resolution requests must be approved and come from the Association Executive Board. Each dispute shall be submitted in writing and must include, at minimum, the following information: (1) a brief statement of the dispute and facts or events on which it is based; (2) the section(s) of the Agreement alleged to have been violated; (3) the rernedy or adjustment sought and; (4) the bargaining unit member's signature or, if filed by the Association, the signature of the Association President. Any claim or dispute by an Officer or group of Officers under this Agreement which includes a clai n for pay or benefits for any past pay periods must be filed by the Officer with the Association within thirty (30) business days of the date when the Officer knew or reasonably should have known of the claim. Disputes by the Association or an Officer shall proceed along the following steps: Step 1. An aggrieved Officer must initiate a dispute with the Association Executive Board within thirty (30) business days of the date upon which the Officer know of or should have known of the facts giving rise to the dispute. A copy of notice or receipt of the dispute shall be forwarded to the Department head by the Association Executive Board within (3) business days of the receipt of the dispute. The Association Executive Board shall within their sole discretion determine if a dispute exists within fifteen (15) business days after receipt of the dispute. If the Association Executive Board determines that no dispute exists, the grievance will be deemed 24 denied and shall need no further action taken. The Association shall notify the Department head in writing that no further proceedings will be necessary. If the Association Executive Board determines that the dispute is valid, it shall within five (5) business days after determination submit the dispute to the Department head and proceed to Step 2 of the procedure. Step 2. After receipt of the dispute, the Department head shall within thirty (30) business days submit his/her response in writing to the Association Executive Board. If there is no timely reply from the Department head the grievance is deemed denied and will proceed to the next step as indicated. The Department head may require by policy for submission of contract disputes within the Chain of command, but shall have a duty to determine the matter within thirty (30) business days of its receipt from the Association. Step 3. If the dispute is not resolved in Step 2, the Association Executive Board may advance the dispute in writing to the City Manager or designee within ten (10) business days from receipt of the Step 2 decision of the Department head. The City Manager or designated representative shall review the matter and render a decision in writing to the Association Grievance Committee within ten (10) business days of the receipt of the dispute in Step 3. The City Manager or designee may, at his or her discretion, conduct a conference to further explore the merits of the dispute and to explore resolution options. Step 4. If the dispute is not resolved in either Step 2 or Step 3, either Party shall have the right to seek mediation of the dispute by requesting same in writing within ten (10) business days. The mediation will proceed before either a mediator with the Federal Mediation and Conciliation Service or before a mutually agreed mediator. The mediation shall be held in available facilities of the City of Denton. Step 5. If the dispute is not resolve at Step 4, the Association shall have ten (10) business days from the date of mediation to determine whether it will pursue the dispute under this article through arbitration. Under this step, the Association must deliver a letter indicating its election to proceed to arbitration to the Department head. Section 3. Arbitration Opinion The Parties have agreed that all disputes under this Agreement, which concern the application and interpretation of this Agreement, shall be submitted to final and binding arbitration, and the Parties except form this Agreement disputes involving statutory application and interpretation for rights and clavns not arising under sections 142 or 143 of the Texas Local Government Code. The terms of the Agreement, and any factual issues which are determinative in applying the Agreement, shall be the sole province of the designated arbitration, and his or her decision shall be final. However, the City will only agree to arbitration on the condition that legal issues which are determinative in any contract dispute are subject to judicial review. This additional exception to the Parties' arbitration Agreement is a narrow one, as reflected by the bargaining history. This contract represents an agreement to submit disputes to arbitration within its scope, and otherwise preserves the existing jurisdiction of Texas Courts over any contract rights and 25 claims not exclusively committed to arbitration. The Parties have agreed that questions of law, which involve either the interpretation and application of state statues or the application of legal principles from Texas appellate court opinions (or the failure to properly apply such legal principles or opinions) to controversies under this article shall be submitted initially to arbitration, but that either party shall have a limited right of appeal from an arbitration award in the Courts solely for the purpose of reviewing disputed issues of law. No such appeal from arbitration shall include review of any factual determinations by the arbitrator, including credibility of witnesses or weight of the evidence. If an appeal from arbitration based on erroneous application of the law is not successful, the appealing Party shall bear all costs of such appeal. If a dispute is submitted to arbitration, within seven (7) business days, the Department head and /or City and the Association shall select an arbitrator by alternately striking names fiorn the Parties' pre - determined panel of six (6) qualified neutral arbitrators. The Association shall strike the fast name under this article with the first dispute brought under this article. Thereafter, the first strike shall alternate between the Parties. The panel list is attached as Exhibit "A" to this Agreement. Should any panel member subsequently refuse or be unable to continue to serve on the panel, the Parties may mutually agree to his/her replacement fiom a mutually accepted list of three (3) arbitrators. In the event the Parties cannot mutually agree to a replacement, the remaining members of the panel will continue to serve for the duration of the Agreement. The arbitration should be held at the earliest available date, but may be continued for good cause shown or upon mutual agreement. Upon written request delivered at least fourteen (14) business days prior to the date of the hearing, a party to the proceeding shall provide, no later than seven (7) business days prior to the hearing, to the opposing party the names and addresses of witnesses expected to be called at the hearing. In the absence of good or excusable cause, the arbitrator may exclude the testimony of a witness upon the failure of a party to disclose such a witness. The parties, in writing, may request discovery from each other concerning the grievance. Should the opposing party not agree to provide the requested information within seven (7) business days of the request; the request shall be deemed denied. The requesting party may then apply to the arbitrator, who shall order such discovery consistent with, but not bound by, the rules of discovery in Texas civil cases. In considering the application, the arbitrator shall consider the burden and expense of producing the information, the need of the requesting party, the amount of time available prior to the hearing, and such other matters as he may deem material. In no event shall discovery be requested within thirty-five (3 5) business days prior to the hearing, unless agreed by the parties. The hearing shall be held in available facilities of the City of Denton and shall be conducted informally, without strict evidentiary or procedural rules. The conduct of the hearing shall be governed by the standard rules of the American Arbitration Association. The arbitrator shall consider and decide only the issue(s) in the dispute statement or submitted in writing by agreement of the Parties. The hearing shall be concluded as expeditiously as possible and the arbitrator's written decision shall be based on a preponderance of evidence within thirty (30) business days after close of the hearing, or after receipt of post - hearing briefs if applicable. 1761 Section 4. Decision Final and Binding If arbitration is selected, the Parties specifically agree that the arbitrator's authority shall be strictly limited to interpreting and applying the explicit provisions of this Agreement. The arbitrator shall not have authority to modify the Agreement or create additional provisions not included in the Agreement. The Parties agree that neither the City nor the Association shall have ex parte communications with the arbitrator concerning any matter involved in the dispute submitted to the arbitrator. Each Party shall be responsible for its own expenses in preparing for and representing itself at arbitration, but the fees and expenses of the arbitrator shall be borne equally by the Parties. The written decision of the arbitrator shall be final and binding on both Parties and may not be appealed by either Party, except for any decision procured by fraud or collusion, or which exceeds the arbitrator's jurisdiction or which is based on legal conclusions or interpretations which are clearly contrary to existing law. Section 5. Mutual Extension All deadlines within this article may be extended by mutual agreement by the Parties. 27 ARTICLE 14 TERM OF AGREEMENT This Agreement shall have an effective date of October 1, 2015, and shall remain in full force and effect through September 30, 2019. I A R TICI .F. 1 S SAVINGS CLAUSE AND PREEMPTION PROVISION Section 1. If any provision of this Agreement is rendered invalid by a court of competent jurisdiction, such invalidity shall not affect any other provision of this Agreement, which shall continue to be in full force and effect for the duration of the Agreement, and the Parties shall meet as soon as possible to agree on a substitute provision. However, if the Parties are unable to agree within thirty (30) days following commencement of the initial meeting, then the matter shall be postponed until Meet and Confer negotiations are resumed. To this end, the provisions of this Agreement are severable. This Agreement may be amended by written mutual agreement. Section 2. The provisions of this Agreement shall supercede the provisions of any statute, Executive Order, local ordinance, or rule, which are in conflict herewith, including for example and not by way of limitation, the contrary provisions of Chapter 143; Ordinances of the City of Denton, Texas; and Local Rules and Regulations of the Civil Service Commission for the City of Denton, Texas. This preemption provision is authorized by section 142.067 of the Texas Local Government Code, and the Parties have expressly agreed that each and every provision involving or creating such a conflict shall have the effect of superceding the statutory standard or result which would otherwise obtain, in the absence of this Agreement. This provision is of the essence to the bargain and Agreement, which has been reached. Section 3. Complete Agreement Clause The Parties agree that each has had full and unrestricted right and opportunity to make, advance and discuss all matters properly within the meet and confer process. This Agreement constitutes the full and complete Agreement of the Parties and there are no others, oral or written, except as specified in this Agreement. Wei SIGNATURE & EXECUTION PAGE THE FOREGOING INSTRUMENT HAS BEEN DULY NEGOTIATED, REVIEWED, AND APPROVED BY EACH OF THE SIGNATORIES INDICATED BELOW: THE CITY OF DENTON, TEXAS (Approved by Denton City Council on of , 2015) By: GEORGE C. CAMPBELL CITY MANAGER By: JENNIFER WALTERS CITY SECRETARY LEE HOWELL POLICE CHIEF Dated: Dated: Dated: By- r 7 _%t Dated:? z v — NITA BURGESS r CITY ATTORNEY THE DENTON POLICE OFFICERS ASSOCIATION (Ratified by DPOA Membership on of By: Dated: VIRGINIA NICHOLS PRESIDENT DENTON POLICE OFFICERS ASSOCIATION By: Dated: BRYAN COSE SECRETARY DENTON POLICE OFFICERS ASSOCIATION I 2015) Norman Bennett Donald Goodman John Barnard Mark Sherman John Allman Louise Bennan Wolitz 9IFFIM PANEL OF ARBITRATORS 31 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -698, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving the Meet and Confer Agreement between the City of Denton and the Denton Fire Fighters Association, and providing an effective date. BACKGROUND As you are aware, over the past few months City management has been working with the Denton Fire Fighters Association to negotiate a renewal to their existing Meet and Confer Agreement. The following is a brief history of the Meet and Confer process in Denton and an update as to the current status of our discussions. House Bills 304 and 2892 granted certain municipalities the option to meet and confer with fire and /or police associations and became effective in September 2005. While the bills do not require the City or the fire and /or police association to engage in a meet and confer process, it gives the legislative authority for the parties to discuss topics such as salaries, benefits, hiring, discipline, and other conditions of employment that are governed by the civil service provision of the Texas Local Government Code and override state law in any resulting contracts entered by the Parties. In October 2005, the Denton Fire Fighters Association petitioned the City Council to act as the sole and exclusive bargaining agent for non - exempt employees of the Denton Fire Department. The City entered into meet and confer negotiations with the Denton Fire Fighters Association following a Council resolution recognizing them as the exclusive bargaining agent for meet and confer on November 15, 2005. On September 26, 2006, Council adopted an ordinance approving the first three (3) year Meet and Confer Agreement, as ratified by the Denton Fire Fighters Association. Prior to expiration of that contract in 2009, the City again entered into meet and confer negotiations with the Denton Fire Fighters Association. On September 22, 2009, Council adopted an ordinance approving the second three (3) year Agreement. Subsequent amendments to that agreement extended the term until September 30, 2015. The current Fire agreement will expire on September 30, 2015. Consequently, in May 2015, management representatives began meeting with the Denton Fire Fighters Association to renegotiate the agreement with the goal of completing negotiations in mid -July. We had very successful discussions with the Association and concluded negotiations with tentative agreements for contracts with a four year term on July 16, 2015. Through the work during this process, the City and the Fire Fighters Association developed an Agreement that contains 17 specific articles dealing with topics such as hiring, promotion, compensation, and discipline, which are City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -698, Version: 1 mutually beneficial. Copies of the agreements and a summary of the specific provision of each agreement are attached. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The City Council met with staff and legal counsel regarding the legal aspects of the meet and confer process at the following closed session meetings: 1. June 9, 2015 (Meet and Confer legal briefing) 2. July 28, 2015 The Fire Fighters Officers Association held a ratification vote for approval of the agreements. However, the final votes were not available at the time of this report. The final vote will be available to the City Council Members at the August 18 City Council Meeting. FISCAL INFORMATION The financial impact of each agreement related to any pay provisions or wellness initiatives will be included in the proposed budget. RECOMMENDATION Staff recommends City Council approve the 2015 -2019 Fire Meet and Confer Agreement. FYUIRITC 1. Fire Meet and Confer Agreement Summary Matrix 2. Ordinance and Fire Meet and Confer 2015 -2019 Agreement Respectfully submitted: Jon Fortune Assistant City Manager Prepared by: Jessica Rogers Assistant to the City Manager City of Denton Page 2 of 2 Printed on 8/13/2015 O N i O N C Sir �C' Sr O� s� w 0 0 s� AO � ° ct o �' � `� � • �' ' � «t � � � � ' � • � sue. � � �" v °�' �, ^c �, Ct �° �' ° o R t ct Ct ct — r O - E ct ct ct Ct o U o U (D s F b � 0 0 ct o o o ct o s- �" cd > bA r' 1 cr3 a, v = rA A. O v rA O N ct ct S: N N O . — m "" m rA rA ct bA v O cH 4 «3 S� ¢, v O N W ', 'v — O C 'A bA . ct v 03 �O O c 'A ;:3 o — o 0 o °' °' ' ci ct 'n sD.�.?.� �. ct oi °o o o3 4. �_ ° oo ct ° o s ° °' o . °�' oN Cl ° ° °�' "3 o" o 03 U �, • Ct o CD rA b ct U bA $- N � s- Ct -- u o. cn o a� th � cn p N � M U o ct ct i Ct ct c R " U Ct o i �' ct N Oct ccf ct � 4-i sct 'A ct (s, O � Nom-' bA `n � N O ccf ct ct N 0 —74 pp t� W In ct ° Q 4a U V p, ° N �, A. 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J bA p � U ct N ^� O cc3 Q O Ct O U O 4a O s, U r U U U bA v N U N O U U U 72 ¢ U J s. ct O O N e -- 4-1 N = p p° N '� ct rA `n `n s. ct O v� Ct N N 'A 'A a, 'A O N ct ^C3 N ,-- U F'+ U H � � O p ct rA Ct ¢, " U O N U� •� � � U N ct cn O �. cn Lr� c O ct O N � O cn p can O � � Ct N ct N O M ct N N O ct O rA W � N N ct 'A cd N TS ct ct ct ct U O 4-' i� U Ct H W t� � 1 �. _10 AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING THE MEET AND CONFER AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FIRE FIGHTERS ASSOCIATION; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute the Meet and Confer Agreement between the City and the Denton Fire Fighters Association in substantially the form of the agreement attached hereto and made a part of this ordinance for all purposes (the "Agreement "). 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 i APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:., Meet and Confer Agreement Between The City of Denton �J Denton Fire Fighters Association, IAFF Local 1291 Fiscal Years 2015 -2016; 2016 -2017; 2017 -2018; and 2018 -2019 TABLE OF CONTENTS DEFINITIONS................................................................................................. ............................... 2 ARTICLE 1 RECOGNITION ......................................................................... ............................... 3 ARTICLE 2 TRANSITION FOR CERTAIN CIVIL SERVICE AND APPOINTED POSITIONS....................................................................................................... ..............................4 ARTICLE 3 LABOR /MANAGEMENT RELATIONS ................................ ............................... 12 ARTICLE 4 HIRING PROCESS .................................................................. ............................... 13 ARTICLE 5 PROMOTIONS ......................................................................... ............................... 18 ARTICLE 6 APPOINTED POSITIONS FOR ASSISTANT CHIEF ........... ............................... 21 ARTICLE7 NEPOTISM ............................................................................... ............................... 22 ARTICLE 8 SAFETY AND HEALTH ......................................................... ............................... 23 ARTICLE 9 DISCIPLINE ............................................................................. ............................... 24 ARTICLE 10 COMPENSATION ................................................................. ............................... 25 ARTICLE 11 CERTIFICATION AND EDUCATION PAYS ..................... ............................... 27 ARTICLE 12 PENSION ................................................................................ ............................... 29 ARTICLE 13 DEFERRED COMPENSATION PLAN ................................ ............................... 30 ARTICLE 14 ASSOCIATION BUSINESS LEAVE .................................... ............................... 31 ARTICLE 15 CONTRACT INTERPRETATION DISPUTE RESOLUTION PROCEDURE... 33 ARTICLE 16 TERM OF AGREEMENT ...................................................... ............................... 37 ARTICLE 17 SAVINGS CLAUSE, PREEMPTION PROVISION, AND COMPLETE AGREEMENT CLAUSE .............................................................................. ............................... 38 EXHIBIT A PANEL OF ARBITRATORS ................................................... ............................... 40 EXHIBIT B NEPOTISM POLICY ............................................................... ............................... 41 EXHIBIT C APRIL 17, 2015 LETTER OF AGREEMENT ......................... ............................... 45 DEFINITIONS 1. "Agreement" means this Meet and Confer Agreement entered between the City of Denton and Denton Fire Fighters Association, IAFF Local 1291. 2. "Association" means the Denton Fire Fighters Association, IAFF Local 1291, its elected leaders and its collective membership. 3. "City" means the City of Denton, its mayor, city council members, city manager, fire chief and those persons designated by the City of Denton to manage the city and its fire department. 4. The term "commission" means the Denton Fire Fighters' and Police Officers' Civil Service Commission. 5. The term "days" refers to calendar days unless otherwise specified. 6. The term "Department" or "Fire Department" means the Denton Fire Department. 7. The term "Department head" or "Fire Chief' means the Fire Chief of the Denton Fire Department, designee, interim, or an acting Chief of the Denton Fire Department. 8. The term "director" means the director of the Denton Fire Fighters' and Police Officers' Civil Service Commission. 9. The teen "Firefighter" means a member of the Denton Fire Department who was appointed in substantial compliance with Chapter 143 of the Texas Local Government Code who is entitled to civil service status under section 143.005 of the Texas Local Government Code and excludes persons attaining civil service status under Article 2. 10. The term "Local Rule" means the Local Rules and Regulations of the Denton Fire Fighters' and Police Officers' Civil Service Commission. 11. The term "newly classified employee" means a person attaining civil service status under Article 2. 12. "Parties" or "parties" means the City of Denton and the Denton Fire Fighters Association, IAFF Local 1291 and "Party" or "party" means either the City of Denton or the Denton Fire Fighters Association, IAFF Local 1291. 0a ARTICLE 1 RECOGNITION The CITY OF DENTON recognizes the DENTON FIRE FIGHTERS ASSOCIATION, IAFF LOCAL NO. 1291, as the sole and exclusive bargaining agent for the covered Firefighters described in the petition for recognition, excluding the head of the fire department and excluding the employees exempt under Subsection (b) of 142.108, in accordance with subchapter C of Chapter 142 of the Texas Local Government Code. ARTICLE 2 TRANSITION FOR CERTAIN CIVIL SERVICE AND APPOINTED POSITIONS Section 1. Intent In the Parties' prior agreements, effective October 1, 2006, (the "2006 -2009 Agreement ") and effective October 1, 2009, (the "2009 -2012 Agreement and Amendments ") the Parties agreed to reclassify certain non -civil service civilian positions in the Fire Prevention Division and Administration Division to civil service for certain civil service benefits and protocols under Chapter 143 of the Texas Local Government Code to create a more unified Department incorporating Operations, Administration and Fire Prevention. To further that transition and that goal, the Parties agree the reclassifications have become permanent and intend for any variation of civil service provisions by this Agreement to also apply to the reclassified positions. Section 2. Employees Affected and Civil Service Status in 2006 -2009 Agreement, 2009- 2012 Agreement and Amendments, and this Agreement. (A) The former non -civil service positions affected by Article 2 of the 2006 -2009 Agreement included the following positions: • Public Education Officer, • Fire Inspector, • Senior Fire Inspector, • Fire Protection Engineer Associate, • Assistant Fire Marshal, • Fire Marshal, • Fire Recruitment Management Analyst, and • Emergency Management Program Manager. A Fire Department employee who served in one of these positions was not required to take a competitive examination to remain in the employee's position if the employee was appointed to that position before October 1, 2006. (B) At the time of the effective date of the 2006 -2009 Agreement, the former non -civil service employees affected by former Article 2 automatically waived into and qualified for the provisions of civil service status under Chapter 143 concerning classification status, disciplinary action, appeals, protocols, sick leave, on duty injury leave, and other such provisions, with the exception of those provisions relating to promotions or transfers and except as otherwise provided in the 2006 -2009 Agreement and 2009 -2012 Agreement and Amendments. (C) The current civil service positions affected by this article include the following: • Fire Inspector Specialist I, • Fire Inspector Specialist II, 4 • Fire Protection Specialist, • Deputy Fire Marshal, • Fire Marshal, • Fire Recruitment Management Analyst /Fire Community Service Officer, and • Emergency Management Program Manager. Section 3. Fire Prevention Division Titles and Ranks (A) Fire Inspector Specialist I Pursuant to the terms of the 2006 -2009 Agreement, the Public Education Officer, Fire Inspector and Senior Fire Inspector were replaced with a Fire Inspector Specialist classification. Pursuant to the terms of the 2009 -2012 Agreement and its amendments, the Fire Inspector was reclassified to a Fire Inspector Specialist I with the salary at the current Fire Fighter base pay and applicable step pay plus three hundred dollars ($300) assignment pay per month. The applicable step determination will continue to be based on the time in rank of Fire Fighter and Fire Inspector Specialist I. (B) Fire Inspector Specialist II Pursuant to the terms of the 2009 -2012 Agreement and its amendments, a new supervisory Fire Prevention position was established with the classification of Fire Inspector Specialist II with a salary at the current Fire Driver base pay and applicable step pay plus four hundred dollars ($400) assignment pay per month. The applicable step determination will continue to be based on the time in rank of Fire Driver and Fire Inspector Specialist II. (C) Fire Protection Specialist Pursuant to the 2006 -2009 Agreement, the Fire Protection Engineer Associate was classified in place. This classification was eliminated when vacated and replaced with the classification of Fire Protection Specialist with a salary at the current Fire Captain base pay and applicable step pay. The Fire Protection Specialist shall receive five hundred dollars ($500) per month assignment pay. The applicable step determination will continue to be based on time in rank of Fire Captain and Fire Protection Specialist. (D) Deputy Fire Marshal Pursuant to the 2006 -2009 Agreement, the Assistant Fire Marshal was classified in place. This classification was eliminated and replaced in 2013 as a result of the Second Amendment to the 2009 -2012 Agreement and its Amendment with the classification of Deputy Fire Marshal with a salary at the current Fire Battalion Chief base pay and applicable step pay. The Deputy Fire Marshal shall receive six hundred dollars ($600) per month assignment pay. The applicable step will continue to be based on the time in rank of Battalion Chief and Deputy Fire Marshal. 5 (E) Fire Community Service Officer Pursuant to the 2006 -2009 Agreement, the position of Fire Recruitment Management Analyst was classified in place. This classification is now hereby eliminated and replaced with a Fire Community Service Officer. Base pay for Fire Community Service Officer will be equivalent to Fire Captain. The incumbent in the Fire Recruitment Management Analyst classification will automatically be reclassified into the classification of Fire Community Service Officer. The applicable step will continue to be based on the time in rank of Captain, Fire Recruitment Captain and Fire Community Service Officer. The Fire Community Service Officer shall receive five hundred dollars ($500) per month assignment pay. The Fire Community Service Officer may be eliminated when vacated by the incumbent and replaced with a Fire Captain classification with the duties to be determined by the Department head. (F) Filling Fire Prevention Division Vacancies Occurring Before the Equivalent Rank 2016 Promotional Testing Date (1) Vacancies in the Fire Prevention Division will be filled in a manner determined by the Department head and in accordance with this subsection of the article. This excludes the appointed positions in section 4 of the article. The process by which the vacancies are filled is not restricted by Article 5, the Promotions Article in this Agreement, or restricted by Chapter 143 of the Texas Local Government Code. (2) The Department head may fill the vacancy by transfer, assignment or promotion. (a) Firefighters may voluntarily transfer to the Fire Prevention Division to fill vacancies according to the eligibility outlined in subsection 3 below provided: (i) he /she meets the requirements of the job description for the position he /she is applying for, and (ii) he /she is recommended by the Fire Marshal and approved by the Department head. (b) The Department head may make an assignment to that position from the Operations Division. (c) The Department head may make a promotion to that position from the Operations Division by appointing one of the first three eligible promotional candidates having the highest grades on the existing eligibility list for the equivalent rank. Transfers back to the Operations Division shall be at discretion of the Department head. (d) The Department head, with the recommendation of the Fire Marshal, may appoint a current member of the Fire Prevention Division from the rank immediately below to the vacant new position, provided he /she meets the requirements of the job description. Current members appointed in such a manner will enter the position at the applicable civil service rate for that rank and follow the steps in that classification. He /she will receive any applicable assignment pay for no the position he /she fills. The Department head may also fill the vacancy by lateral transfer within the Fire Prevention Division. (i) If a selection occurs of a member of the Fire Prevention Division who originated in the Operations Division and that member transfers back to the Operations Division, that member would transfer back at the rank previously held in the Operations Division. That member will not gain rank through a Fire Prevention Division promotion under this process. (3) Firefighters transferring under this section retain their pay grade and benefits and, in addition, receive any assignment pay for the applicable Fire Prevention Division position. Transfers to the Fire Prevention Division shall not be for promotional purposes under Civil Service rules. Therefore, Firefighters transferring into the Fire Prevention Division may on transfer to an equivalent rank as follows: • Fire Inspector Specialist I = Fire Fighter • Fire Inspector Specialist II = Driver • Fire Protection Specialist and Fire Community Service Officer = Captain • Deputy Fire Marshal = Battalion Chief (4) Firefighters transferring or assigned to the Fire Prevention Division must complete the assignment for a minimum of two years. This assignment may be shortened or lengthened by mutual agreement of the Firefighter and the Department head. At the expiration of the two (2) year assignment, the Firefighter may request a transfer back to Operations. (5) An exception to the two year assignment shall be for promotions. A Firefighter transferred or assigned to the Fire Prevention Division shall be entitled to take a promotional examination if otherwise eligible. The Firefighter may promote out of the Fire Prevention Division back into the Operations Division. (6) No Probationary Fire Fighters will be assigned to the Fire Prevention Division. (G) Filling Fire Prevention Division Vacancies Occurring After the Equivalent Rank 2016 Promotional Testing Date (1) Vacancies in the Fire Prevention Division occurring after the equivalent rank 2016 promotional testing date will be filled by lateral transfer, assignment or from a promotional list. This excludes the appointed positions in section 4 of the article. The process by which the vacancies are filled is consistent with Article 5, the Promotions Article in this Agreement, and consistent with Chapter 143 of the Texas Local Government Code except that a newly classified employee will be considered to be eligible to take a promotional examination for the classification that is immediately above in rank for promotion in the Fire Prevention Division. (2) The Department head may fill the vacancy by transfer, assignment or promotion. %I (a) Firefighters or newly classified employees may voluntarily transfer to the Fire Prevention Division or within the Fire Prevention Division. (b) The Department head may make an assignment to that position from the Operations Division or Fire Prevention Division. (c) The Department head may make a promotion to that position from the existing eligibility list for the equivalent rank by appointing the eligible promotional candidate having the highest grade on the eligibility list under section 143.036 of the Texas Local Government Code. Transfers back to the Operations Division shall be at discretion of the Department head. (3) Firefighters transferring under this section retain their pay grade and benefits and, in addition, receive any assignment pay for the applicable Fire Prevention Division position. Transfers to the Fire Prevention Division shall not be for promotional purposes under Civil Service rules. Therefore, Firefighters transferring into the Fire Prevention Division may only transfer to an equivalent rank as follows: • Fire Inspector Specialist I = Fire Fighter • Fire Inspector Specialist 11= Driver • Fire Protection Specialist and Fire Community Service Officer = Captain • Deputy Fire Marshal = Battalion Chief (4) Firefighters transferring or assigned to the Fire Prevention Division must complete the assignment for a minimum of two (2) years. This assignment may be shortened or lengthened by mutual agreement of the Firefighter and the Department head. At the expiration of the two (2) year assignment, the Firefighter may request a transfer back to Operations. (5) An exception to the two year assignment shall be for promotions. A Firefighter assigned to the Fire Prevention Division shall be entitled to take a promotional examination if otherwise eligible. The Firefighter may promote out of the Fire Prevention Division back into the Operations Division. (6) No Probationary Fire Fighters will be assigned to the Fire Prevention Division. Section 4. Fire Marshal and Emergency Management Program Manager. (A) Fire Marshal and Emergency Management Program Manager By Appointment. The positions of Fire Marshal and Emergency Management Program Manager shall continue to be appointed by the Department head and shall not be filled by promotional examination. A person appointed under this section serves at the pleasure of the Department head. (B) Fire Marshal Classification. The Fire Marshal shall continue to be classified in place. (C) Emergency Management Program Manager. The Emergency Management Program Manager shall continue to be classified in place. (D) Base Pay Prior to a Vacancy Occurring. The base pay for Fire Marshal and Emergency Management Program Manager, prior to a vacancy occurring in each respective position, will be determined by the Department head based on market comparisons in accordance with City of Denton policy. (E) Upon the Vacancy in the Current Positions of Fire Marshal and Emergency Management Program Manager. (1) Determination of Job Descriptions and Base Pay. When a vacancy occurs in either of the current positions of Fire Marshal or Emergency Management Program Manager, the base pay and minimum and preferred qualifications for that position from the time of vacancy will be made by recommendation by the joint Labor /Management Committee to the Department head. The Department head will determine whether to adopt the recommendation and ultimately will determine minimum and preferred qualifications and base pay for that position. (2) Vacancy to Be Filled by Appointment by the Department Head. Vacancies in the positions of Fire Marshal or Emergency Management Program Manager shall be filled by appointment by the Department head. Appointments for Fire Marshal or Emergency Management Program Manager will be made by the Department head from within the Department, following the procedure outlined below. If no suitable candidate from within the Department exists, the Department head may appoint a person from outside the Department Procedure. 1. Job Announcement for potential candidate(s) within the Department 2. Candidate(s) submit a letter of interest and resume to the Department head 3. Application review for minimum and preferred qualifications by the Department head 4. Department head's interview 5. Appointment from within the Department or proceed to external process if no suitable internal applicant 6. External Job Announcement 7. Candidate(s) submit an application and resume to Human Resources 8. Application review for minimum and preferred qualifications by the Department head 9. Department head's interview 10. Potential appointment from external candidates or repost externally (3) Review of Non - Selection by Internal Candidate. In the event that an internal candidate applies and proceeds through step 4, but is not selected and the Department head proceeds to the 0 external process, that candidate may seek review of the non - selection. The internal candidate may seek review by providing a written statement to the Department head within ten (10) calendar days from the date of the notification of non - selection stating the basis for review. The review process shall be as follows: (a) The joint Labor /Management Committee shall review the Department head's decision and make a non - binding recommendation in writing to the Department head within five (5) business days from the date that the candidate seeks review. (b) The Department head shall review the recommendation by the joint Labor /Management Committee and determine whether or not to reconsider the decision within ten (10) calendar days from the date of the recommendation. (c) The internal candidate may seek review of the non - selection to the commission by submitting a request in writing to the director within five (5) business days from the date of determination by the Department head of sustaining the non - selection. The commission shall have ten (10) business days to conduct a hearing and render a decision sustaining or overruling the Department head's decision to seek an external candidate. The standard of review by the commission is whether the Department head's decision is arbitrary and capricious. The commission's decision shall be final and binding with no right of appeal to an arbitrator or district court. (d) Deadlines in this article may be extended by mutual agreement by the internal candidate seeking review and the Department head. (F) Internal Appointment. In the event that an internal Firefighter or newly classified employee under this article fills the vacancy, only subsections 143.014(8) and 143.014(h) of 143.014 of the Texas Local Government Code shall apply. (G) External Appointment. In the event that an external candidate fills the vacancy, only subsection 143.014(h) of 143.014 of the Texas Local Government Code shall apply after a twelve (12) month probationary period applicable to an external appointment, except that the provision relating to being restored to the same classification or its equivalent shall not apply. Section 5. Transfer. (A) Restrictions. The newly classified employees under former article 2 in the 2006 -2009 Agreement, and 2009 -2012 Agreement and Amendments and under this article may not transfer out of their currently assigned Division into any other classified civil service position in another Division in the Department. Newly classified Prevention Division employees under former article 2 in the 2006 -2009 Agreement and 2009 -2012 Agreement and Amendments and under this article are only eligible to promote or transfer within their currently assigned Division. (B) Effect of Transfer. Operations Division Firefighters who transfer to the Fire Prevention Division or Administration Division are eligible to take promotional examinations, provided they meet the requirements for the promotional examination under Chapter 143 of the Texas Local Government Code and any pre - requisites for promotion as determined under article 5 of this 10 Agreement. It is the intent of the Parties that, a Firefighter does not gain rank or lose rank by transferring between Divisions. Section 6. Commission's Role. The commission may adopt rules under this article providing for the efficient administration of this article. Section 7. Statutory Override. To the extent this article continues to reclassify the current positions of Fire Inspector Specialist 1, Fire Inspector Specialist II, Fire Protection Specialist, Deputy Fire Marshal, Fire Community Service Officer, Fire Marshal, Fire Recruitment Management Analyst and Emergency Management Program Manager to civil service positions this article overrides section 143.003(4) and section 143.003(4)(A). This article is the exclusive process and provision by which the former positions of Public Education Officer, Fire Inspector, Senior Fire Inspector, Fire Protection Engineer Specialist and Assistant Fire Marshal; and current positions of Fire Inspector Specialist 1, Fire Inspector Specialist 11, Fire Protection Specialist, Deputy Fire Marshal, Fire Marshal, Fire Community Service Officer and Emergency Management Program Manager are afforded civil service status. Unless otherwise provided in this article, this article overrides sections 143.014, 143.015 to the extent limited in section 4 of this article, 143.026, 143.028, 143.029, 143.030, 143.032, 143.033, 143.034, 143.036 (except the definition of vacancy), 143.041(b), 143.041(c)(3), 143.042 and 143.085 of the Texas Local Government Code. The overrides to Chapter 143 of the Texas Local Government Code also apply to this article and to the reclassified positions of Public Education Officer, Fire Inspector, Senior Fire Inspector, Fire Inspector Specialist 1, Fire Inspector Specialist 11, Fire Protection Specialist, Deputy Fire Marshal, Fire Community Service Officer, Fire Marshal, Fire Recruitment Management Analyst and Emergency Management Program Manager. ARTICLE 3 LABOR/MANAGEMENT RELATIONS Each Party shall designate three (3) representatives to serve on a joint Labor /Management Committee ( "Committee "). This Committee shall meet quarterly at agreeable times and places to discuss matters of mutual concern. Such discussion shall not be tantamount to, or an extension of, the bargaining process, but shall be for the purpose of encouraging productive relations between the parties and the improvement of the fire services to the community. A minimum of two (2) members from each party must be present for a meeting to be held. The Department head will make reasonable efforts to accommodate requests by Association members to attend if they are on duty. Both parties understand and agree that Committee meetings are not required on any issue, except where provided for in Articles 2, 5 and 8 of this Agreement, and are not a condition nor limitation on the management rights to make and enforce policies, rules, regulation, or operational decisions. The work of the Committee shall be conducted on City time without loss of pay by Committee members; except that meetings which are scheduled at times when Association members who are not on duty, such members shall attend on their own time without compensation. 12 ARTICLE 4 HIRING PROCESS Section 1. Intent In adopting this article, the Parties agreed to implement a hiring system for beginning positions in the Department that provided for selection based upon the determination by an Oral Interview Board and the Chief's Interview. The parties believe a determination by the Oral Interview Board and Chief's Interview for beginning positions improved the selection process and provided applicants a fair opportunity to demonstrate skills and abilities that serve as additional good indicators that they would perform well in the Department. Section 2. Adoption and Publication of Rules Any Local Rules that may be adopted by the commission shall be in conformity with the provisions of this article. Section 3. Written Examination and Commission List (a) Establishment of Date of Written Examination in 2011 Entrance examinations will be held on the second Saturday in January. The actual date of the examination may be rescheduled in the event of circumstances beyond the City's control including but not limited to extraordinary weather events or other emergencies. (b) Written Examination and Military Points The written examination under Chapter 143 of the Texas Local Government Code shall be administered and the minimum passing grade on the written examination is seventy percent (70 %). An additional five (5) points shall be added to the examination grade of an applicant who served a minimum of one hundred and eighty (180) active days in the United States armed forces, received an honorable discharge, and made a passing grade on the examination. In the event a tie should occur, the process to break a tie will follow the Department Hiring Guideline. A passing grade on the written examination may permit the applicant to proceed to the next step(s) in the hiring process. The grade on the written examination will not serve as the grade for ranking on the eligibility list; however, the written examination grade, plus any applicable military points, will determine the ranking for a Commission List from which applicants proceed through the remainder of the hiring process. (c) Commission List In this article " Commission List" shall mean the list of applicants who made a passing grade on the written examination ranked from highest to lowest including any applicable military points and shall not mean the eligibility list from which an applicant may be appointed. 13 When a vacancy occurs in a beginning position in the Fire Department, the Department head shall request in writing from the director the names of suitable persons from the Commission List outlined in subsection (a) above. The director shall certify and provide to the Department head all of the names of such applicants on the Commission List. From the Commission List of names, the Department head shall identify a number of applicants, based on the determination of the Department head related to the number of vacancies, with the highest ranking to proceed through the process. Section 4. Background Check and Physical Ability Test (a) Background Check After the Department head determines an applicant to be eligible to proceed through the process by the Department head, the applicant will proceed through the Background Check in accordance with the Department's Hiring Guidelines. If an applicant passes the Background Check, then the applicant shall proceed to the Physical Ability Test. If an applicant does not pass the Background Check, the applicant will be disqualified from any further consideration in the hiring process. (b) Physical Ability Test From the list of names of applicants who passed the background check, the Department head shall identify the fifteen (15) applicants with the highest ranking on the Commission List to proceed to the Physical Ability Test in accordance with the Department's Hiring Guidelines. If an applicant passes the Physical Ability Test, then the applicant will be considered to proceed to the Oral Interview Board. If an applicant does not pass the Physical Ability Test, the applicant will be disqualified from any further consideration in the hiring process. All applicants who have passed the Background Check and Physical Ability Test shall proceed to the next step in the process. If less than three (3) applicants pass the Background Check and Physical Ability Test, the Department head shall identify the next fifteen (15) applicants with the highest ranking on the Commission List (or those remaining on the Commission List if less than fifteen (15)) to proceed to the Physical Ability Test in accordance with the Department's Hiring Guidelines. (c) Selection of Candidates To Proceed to Oral Interview Board From the list of names of applicants who passed the Physical Ability Test, those applicants shall proceed to the next step in the process. In the event those applicant names are exhausted after the completion of the Oral Interview Board and Chief s Interview, then the Department head shall proceed under section 4(b) of this article to identify the next fifteen (15) applicants with the highest ranking on the Commission List to proceed to the Physical Ability Test in accordance with the Department's Hiring Guidelines. E Section 5. Oral Interview Board (a) Oral Interview Board The Department head shall establish an Oral Interview Board made up of four (4) board members with four (4) alternate board members. Three (3) of those board members and three (3) of the alternate board members shall be Firefighters from the Department. One (1) of those board members and one (1) of the alternate board members shall be a citizen member from the city of Denton chosen by the Department head. It is understood that all board members and alternate board members of the Oral Interview Board will receive appropriate training to conduct interviews. (b) Interview The Oral Interview Board will interview eligible applicants determined by the preceding steps in this article. Each member of the Oral Interview Board will assign an applicant a score from zero (0) to one hundred (100) points. The average of those four (4) scores will be calculated and will be the final Oral Interview Board score for each eligible applicant. If an applicant obtains a final Oral Interview Board score of seventy (70) points or more, an applicant will proceed to the Chief s Interview. If an applicant does not pass with a score of seventy (70) points or more, the applicant will be disqualified from any further consideration in the hiring process. Section 6. Chiefs Interview The Fire Chief will interview eligible applicants determined by the preceding steps in this article. The Fire Chief shall invite the Deputy Fire Chief and /or one or more Battalion Chiefs) to attend the Fire Chiefs Interview for all eligible applicants. The Chief will assign an applicant a score from zero (0) to one hundred (100) points. Any input from the Deputy Fire Chief or Battalion Chief will be included in the Chief s score. This score will be the final Chief s Interview score for each eligible applicant. If an applicant does not pass with a score of seventy (70) points or more, the applicant will be disqualified from any further consideration in this hiring process. Section 7. Eligibility List The overall score to be placed on the eligibility list for each eligible applicant shall be computed by taking the applicant's final Oral Interview Board score and multiply the score by .70 to the account for seventy percent (70 %) of the applicant's final overall score; and adding the applicant's final Chief s Interview score and multiply that score by .30 to account for thirty percent (30 %) of the applicant's final overall score (see below). (4 Oral Interview Board Scores divided by 4 = final Oral Interview Board Score) x 70% (final Chief s Interview score) x 30% applicant's final overall score 15 When a vacancy occurs, the Department head shall appoint the eligible suitable applicant having the highest final overall score on the eligibility list unless the Department head has a valid reason for not appointing the person. Each hiring eligibility list remains in existence for one (1) year after the written examination unless exhausted. All applicants may be subject to a polygraph examination at the Department head's discretion. Section 8. Effect of an Eligibility List Currently In Existence and Eligibility List Created Under this Agreement A hiring eligibility list in existence at the time of the adoption of this Agreement shall continue in effect until January 10, 2016, unless exhausted. Any hiring eligibility list created under this article will take effect upon the expiration of any applicable pre - existing list. Section 9. Probationary period Unless already certified as both a firefighter by the Texas Commission on Fire Protection and a paramedic by the Texas Department of State Health Services, a person appointed to a beginning position in the Department must serve a probationary period of up to eighteen (18) months beginning on that person's date of employment as a Fire Fighter, or trainee. A person appointed to a beginning position in the Department who is certified as both a fire fighter and a paramedic shall serve a probationary period of twelve (12) months. Section 10. Disqualification In the event an applicant is disqualified at any point in the hiring process, the Department head shall clearly set forth in writing the good and sufficient reason why a person was disqualified. Section 11. Statutory Override This article supercedes the following sections of the Texas Local Government Code to the extent the article may be in conflict with any of these sections: section 143.025(a) to account for an Oral Interview Board and Chiefs Interview only to be administered to certain applicants that meet the hiring process criteria under the rules implemented in accordance with this article and to establish the eligibility list based on the Oral Interview Board and Chiefs Interview as outlined in this article; section 143.025(b) to base the eligibility list on the Oral Interview Board and Chiefs Interview final overall score as outlined in this article; sections 143.025(c), 143.025(d) and 143.025(e) to provide for the Oral Interview Board and Chiefs Interview to interview applicants outside the presence of other applicants and at different times; section 143.025(h) to extend the effective date of the eligibility list from examination date to examination date; section 143.025(1) to provide for an Oral Interview Board and Chiefs Interview in the grading process and for establishment of an eligibility list as outlined in this article; sections 143.026(a), 143.026(b), 143.026(c) and 143.026(d) to allow the creation of various lists in the hiring process as outlined in this article, to allow for appointment and disqualification by the Department head, to account for the Oral Interview Board and Chiefs Interview final overall score as a basis for the applicant's selection, and to eliminate the requirement of filing reasons of a pass over with the commission; and section 143.027 regarding probationary period. This article further preempts, to the extent of any conflict, all contrary state statutes, local ordinances, executive orders, civil service provisions, or rules adopted by the Department head or head of the City or by a division or agent of City, such as the commission. 17 ARTICLE 5 PROMOTIONS Section 1. Intent In adopting this article, the parties agreed to implement changes to the promotional process for the Department by establishing pre - requisites that qualify a candidate to take a promotional written examination. The parties believe that establishing pre- requisites for promotional written examinations will improve the promotional process and will provide promotional candidates a fair opportunity to meet pre- requisites that serve as additional good indicators that they will perform well in the positions to which they seek to be promoted. This article includes the positions addressed in section 3 of Article 2. Section 2. Definitions (a) In this article "written examination" means the written examination provided for promotions under Chapter 143 of the Texas Local Government Code. (b) In this article, "pre- requisites" means the minimum qualifications and conditions required of candidates for eligibility to take a Chapter 143 written examination for promotion within the Department. Section 3. Role of Commission Any Local Rules that may be adopted by the commission shall be in conformity with the provisions of this article. Section 4. Minimum Qualifications (a) For the promotion to the rank of Fire Driver, the Fire Driver pre- requisites shall require the candidate to serve at least three years in the classification of Fire Fighter, hold an active certification by the Texas Commission on Fire Protection as a Driver /Operator, hold current certification by the Texas Department of State health Services as a Paramedic and successful completion of an annual Driver Skills Test. (i) In order to be eligible to take the promotional examination for the Fire Driver classification, a newly classified employee in the Prevention Division is exempt from the certification requirements of Driver /Operator and Paramedic, and is exempt from the successful completion of an annual Driver Skills Test included above. (b) For promotion to the ranks of Fire Captain and Fire Battalion Chief, (i) The Fire Captain and Fire Battalion Chief pre - requisites shall require the candidate to serve at least two (2) years in the position in the classification that is immediately below. BEV (ii) Effective January 1, 2017, the Captain and Battalion Chief pre- requisites: (a) shall require the candidate to hold an active certification by the Texas Commission on Fire Protection as a Fire Officer I1; and (b) shall require the candidate to serve at least two years in the position in the classification that is immediately below. (iii) A newly classified employee in the Prevention Division is exempt from the requirements under subsection(ii)(a) above in order to be eligible to take the promotional examination for Fire Captain and Fire Battalion Chief classifications. Section 5. Evaluation The joint Labor /Management Committee will establish a system within the joint Labor /Management Committee to evaluate the promotional process and the pre - requisites established. Section 6. Date of Written Examinations and Rescheduling (a) Fire Battalion Chief Written examinations for the rank of Fire Battalion Chief will be held on the second Tuesday of January. The Fire Battalion Chief promotional list shall remain in effect until the date of the next promotional examination unless otherwise exhausted. Effective January 1, 2017, the written examination for Fire Battalion Chief will be held on the first Tuesday in March. (b) Fire Captain Written examinations for the rank of Fire Captain will be held on the second Tuesday of February. The Fire Captain promotional list shall remain in effect until the date of the next promotional examination in 2017 unless otherwise exhausted. Effective January 1, 2017, the written examination for Fire Captain will be held on the first Wednesday in March. (c) Fire Driver Written examinations for the rank of Fire Driver will be held on the first Tuesday of March. Effective January 1, 2017, the written examination for Fire Driver will be held on the first Thursday in March. (d) Rescheduling of Written Examinations The actual date of the examinations may be rescheduled after the examination dates in this section in the event of circumstances beyond the City's control including but not limited to IM extraordinary weather events or other emergencies. In the event of a rescheduling, no further notice of the examination is required other than the new time, place and date of the rescheduled examinations, notwithstanding section 143.029 of the Texas Local Government Code. Meeting the scheduled examination dates outlined or provided for in this section, or rescheduling those dates pursuant to this subsection, precludes any liability for back pay or retroactive seniority for that position or any lower position. Section 7. Scope of Appeals Appeals to the commission under section 143.034 of the Texas Local Government Code shall be limited to quoted source material attributable to the referenced examination question. Section S. Eligibility List When a vacancy occurs in a nonentry position that is not appointed by the Department head, the director, on request by the Department head, shall certify to the Department head the names of the eligibility list. This section of the article shall supersede Section 143.036(b) of the Local Government Code to the extent that Section requires the certification of persons on the eligibility list to be certified three (3) persons at a time. This section of the article is intended to omit the administrative process of providing three (3) names at a time and instead provide a process where all names of the persons on the eligibility list are certified and provided at once when filling a vacancy for a nonentry position in the Fire Department. Section 9. Statutory Override This article supercedes the following sections of the Texas Local Government Code: section 143.029 to override posting rules in the event an examination is rescheduled; sections 143.030(b) and (c) to supplant the statutory pre- requisites for promotions; section 143.030(d), sections 143.032(a), 143.032(b), 143.032(c), and 143.032(d) to provide for pre - requisites for the promotional process to the extent any of those pre - requisites may be deemed to conflict with these statutory sections; section 143.034 to limit the scope of appeals; section 143.036(a) to provide for the promotional process in accordance with this article and to the extent any provisions of this article may be deemed to conflict with this statutory section; and 143.036(h) for the promotional eligibility list to remain in existence until the date of the next promotional examination for that rank. This article further preempts, to the extent of any conflict, all contrary state statutes, local ordinances, executive orders, civil service provisions, or rules adopted by the Department head or head of the City or by a division or agent of the City, such as the commission. 20 ARTICLE 6 APPOINTED POSITIONS FOR ASSISTANT CHIEF Up to two (2) Assistant Chief positions may be filled by appointment by the Department head pursuant to the process provided for in Section 143.014(e) of the Texas Local Government Code. This article supercedes Section 143.014(c). Newly classified employees are ineligible to be considered for this appointment. 21 ARTICLE 7 NEPOTISM Section 1. Purpose The Denton Fire Department through employment, promotion, or transfer of relatives, will not contribute to the creation of any inequity or impropriety among its members. The purpose of this procedure is to communicate a Department policy regarding employment and supervisory relationships among family members. Section 2. Definition and Scope of Application During the term of this Agreement, the parties agree that the definition of "relative" shall meet the same definition of "familial relationship" provided by City Policy Reference Number 102.08 dated September 3, 2002 attached as Exhibit B, and agree this article applies to a Firefighter as defined in this Agreement or a newly classified employee in Article 2. Section 3. Appointment of Relatives to City Employment Members of the Department assigned to positions that make appointments, conduct interviews, promote, etc. cannot participate and must disqualify themselves if a relative is a candidate. In addition, members shall notify the Fire Chief in writing to disclose the relationship or interest involved. Section 4. Immediate Supervisory Relationships Members shall not directly supervise a relative. Direct or immediate supervision includes participation in a hiring decision, promotional decision, disciplinary decision, or preparing or influencing a performance evaluation of a relative. In a Battalion, relatives shall not be assigned to the same shift. Temporary shift swaps or overtime assignments are permitted, provided there is no immediate supervisory relationship. At the discretion of the Incident Commander, the prohibition on the immediate supervisory relationship of relatives during emergency operations is put aside. Irrespective of the immediate supervisory relationship, members shall not participate in a decision involving the financial interest of a relative, including hiring, promotion, discipline and pay increases. In addition, members shall not attempt to influence others in a financial interest of a relative. Section 5. Changes or Amendments during Term of Agreement It is understood that during the term of this Agreement, if either party requests in writing a meeting concerning changes or amendments to the definition of the term "relative," the parties shall meet within ten calendar days to discuss such changes or amendments. Changes made to section 2 are not subject to ratification by the Association or the City Council. 22 ARTICLE 8 SAFETY AND HEALTH Section 1. Intent and Annual Physicals It is the desire of the City and the Association to maintain the highest standards of safety and health in the Fire Department. The City and Association agree to use NFPA 1583, NFPA 1582 and the 1AFF /IAFC Joint Wellness Fitness Initiative as a guideline for the implementation of policy regarding health and safety issues in the Department over time. The parties agree that the Wellness Committee will continue to work on implementing the requirements of rule 435.21 of the Texas Commission on Fire Protection. To that end, each Firefighter and newly classified employee in the Prevention Division shall undergo a physical each fiscal year. Physicals shall be conducted by an entity recommended by the Department Wellness Committee, approved by the joint Labor Management Committee, and approved by the Department head. Section 2. Optional Tiered Performance Incentive Pay The intent of this optional incentive pay program is not to create an entitlement but to further improve the health and wellness of the Department and provide incentive pay for the top two ratings of "Superior" and "Excellent" and not the ratings of "Good" or below. A prerequisite for the incentive pay requires the Firefighter and newly classified employee to participate in the City's annual Health Risk Assessment (blood work report follow up). (A) Superior Rating. Effective January 1, 2016, a Firefighter and newly classified employee who receives a "Superior" rating on his /her annual physical which includes a combination of the medical assessment and fitness assessment shall receive a one -time lump -sum payment of $600 for that rating. The lump -sum payment shall be paid the first pay period in the month of November following the receipt of the "Superior" rating. (B) Excellent Rating. Effective January 1, 2016, a Firefighter and newly classified employee who receives an "Excellent" rating on his /her annual physical which includes a combination of the medical assessment and fitness assessment shall receive a one -time lump -sum payment of four hundred dollars ($400) for that rating. The lump -sum payment shall be paid the first pay period in the month of November following the receipt of the "Excellent" rating. Section 3. Statutory Override Sections 1 and 2 of this article supersede sections 143.041(c)(6) and 143.044(d) of the Texas Local Government Code to provide for fitness incentive pay as outlined above. 23 ARTICLE 9 DISCIPLINE Section 1. Written Statement If the Department head suspends a Firefighter or newly classified employee, a copy of the statement giving the reasons for the suspension shall immediately be delivered in person to the suspended Firefighter or newly classified employee and filed with the director within one hundred and twenty (120) hours. This statement shall only be delivered to the commission if the Firefighter or newly classified employee chooses to appeal to the commission under section 143.052(d). In instances where the Firefighter or newly classified employee chooses to appeal to the commission, the written statement will be forwarded to the commission within one hundred and twenty (120) hours from the time the Firefighter or newly classified employee notifies the director in writing of his /her choice to appeal to the commission. Section 2. Time to Investigate Charges In the original written statement and charges and in any disciplinary suspension hearing conducted under this Agreement or Chapter 143, the Department head shall have one hundred and eighty (180) days to investigate and take disciplinary action from the date the Department head discovers an act, provided that the Department head may not complain of or take disciplinary action for an act (not related to criminal activity) that occurred more than one (1) year before the date of disciplinary action. Section 3. Statutory Override Section 1 of the article supercedes section 143.052(c) of the Texas Local Government Code requiring a statement to be forwarded to the commission within one hundred and twenty (120) hours of the suspension. Section 1 also supercedes section 143.052(e) of the Texas Local Government Code only in that, in instances where the Firefighter or newly classified employee does not choose to appeal to the commission, the written statement will not be forwarded to the commission. Section 2 of the article shall supercede the first sentence of section 143.052(h) of the Texas Local Government Code. Nothing in this article affects the remainder of section 143.052(h) or affects section 143.056 of the Texas Local Government Code. M ARTTCIN 10 COMPENSATION Section 1. Base Pay Philosophy It is the desire of the City to recognize that the employees of the City of Denton Fire Department perform their responsibilities at a level that is above the typical metroplex fire agency. As such, it is the desire of the City to maintain a pay philosophy that exceeds the average metroplex pay for Firefighters as reflected in Section 3(a). The parties recognize the financial limitations facing the City due to this challenging economic period. Sections 3(c) -(d) of this article reflect the parties' intent to address the current economic period and are not intended to serve as precedent in future agreements. Section 2. Comparator Cities Arlington, Carrollton, Fort Worth, Frisco, Garland, Grand Prairie, Irving, Lewisville, McKinney, Mesquite, Plano and Richardson shall continue to be used as comparator cities for the salary survey to be conducted each year of this contract. The City and Association shall convene a Labor /Management Pay Subcommittee to perform a survey in May of each year of the Agreement upon which consideration for the proposed base salary adjustments for the following fiscal years shall be calculated. Based on the survey information of the comparator cities, the average of base pay for minimums and maximums for each rank shall be calculated and proposed for approval as a part of the budget process. Proposed increases may be limited to the average base pay percentage increase for non -civil service City employees approved by the City Council in the annual budget. Section 3. Compensation Proposal Calculation (a) Compensation for the ranks of Fire Fighter, Fire Driver, Fire Captain, and Fire Battalion Chief shall be proposed on the basis of the following calculations: The recommended base pay scale shall continue to be calculated by the salary survey conducted in May of each year of the Agreement, utilizing the average minimum and maximum base salary for each rank of the twelve (12) comparator cities as specified in this contract, plus five percent (5 %). The recommendation will propose that the minimum and maximum base pay for each rank, will receive an increase (should an increase be required) to match the survey average plus five percent (5 %). The steps between the minimum and maximum steps will be recalculated to maintain equal separation between any new minimum and maximum steps. (i) In order to continue to address promotional compression in pay between the Fire Fighter and Fire Driver ranks first set forth in the parties' April 17, 2015 Letter of Agreement (Exhibit "C "), the recommended base pay for Fire Driver, step A shall 25 be proposed to be equivalent to a minimum of three percent (3 %) increase of step F for the Fire Fighter rank. (b) The salary subcommittee shall prepare a report to the City Manager to be forwarded to the City Council at the time the proposed budget is submitted to the City Council that will show the cost of implementing the pay increase as calculated above compared to the cost to pay Firefighters the same percentage increase as non -civil service employees. (c) Increases recommended in subsection 3(a) may be limited to the average base pay increase budgeted for non -civil service City employees. Should the City Council approve a budget that does not include base pay increases for non -civil service employees, the ranks of Fire Fighter, Fire Driver, Fire Captain, and Fire Battalion Chief shall not receive any base pay increase regardless of the calculated amount necessary to reach minimum and maximum rates plus five percent (5 %). (d) Should the City Council approve a budget that includes lump sum pay increases instead of an increase to base pay to non -civil service City employees, the ranks of Fire Fighter, Fire Driver, Fire Captain, and Fire Battalion Chief will receive a lump sum payment instead of an increase for non -civil service employees. Section 4. Funding Obligations Depending upon the financial forecasts, the City may implement the compensation recommendations in section 3 between the first pay period of the fiscal year and the first pay period of April of each fiscal year. The City presently intends to continue this Agreement each fiscal year through its term, to pay all payments due, and to fully and promptly perform the obligations of the City under this Agreement. All obligations of the City shall be paid only out of current revenues or any other funds lawfully available for those obligations, including tax revenues reasonably anticipated at equal or higher total gross amounts as were collected in each preceding fiscal year respective to each year of the Agreement, and appropriated for such purpose by the City Council, in compliance with the Texas Constitution, Article XI, Sections 5 and 7. Following the adoption of the annual budget that may establish a pay increase, should the City Council find it fiscally necessary to reduce base pay for non -civil service City employees, or implement other cost saving measures such as mandatory furloughs or a reduction -in- force, the increases recommended under this Article may be reduced accordingly. P ARTICLE 11 CERTIFICATION AND EDUCATION PAYS Section 1. Aircraft Rescue Firefighting Certification Each Firefighter eligible for Aircraft Rescue Firefighting ( "ARFF ") certification pay shall be granted certification pay commencing the first pay period after: (1) submission of the proof of eligibility and, (2) verification by the Department head. The monthly rate shall be prorated accordingly back to the first day of the pay period following the date of certification if eligibility occurs during a fiscal year. Effective the first pay period of fiscal year 2015 -2016, ARFF certification pay shall be six hundred dollars ($600.00) annualized rate, fifty dollars ($50.00) monthly rate. The total number of eligible Firefighters shall be determined by the Department head. Section 2. Certification or Education Pay Each Firefighter or newly classified employee eligible for Certification or Education pay shall be granted either certification or education pay commencing the first pay period after: (1) submission of the proof of eligibility and, (2) verification by the Department head. Education eligibility requires successfully completed courses at an accredited college or university. The monthly rate shall be prorated accordingly back to the first day of the pay period following the date of certification or transcript date if eligibility occurs during a fiscal year. (a) Fiscal Year 2015 -2016: Certification: Intermediate —Fire $840.00 annualized rate $70.00 monthly rate Advanced —Fire $1,560.00 annualized rate $130.00 monthly rate Master —Fire $2,280.00 annualized rate $190.00 monthly rate Education: 30 hours toward degree $480.00 annualized rate $40.00 monthly rate Associates Degree $840.00 annualized rate $70.00 monthly rate Bachelor's Degree $1,560.00 annualized rate $130.00 monthly rate Master's Degree $2,280.00 annualized rate $190.00 monthly rate i►•U/ (b) Fiscal Year 2016 -2017: Each certification and education monthly rate shall increase by $10.00. (c) Fiscal Year 2017 -2018: Each certification and education monthly rate shall increase by $10.00. (d) Certification and education pays are not cumulative. The Firefighter shall receive the higher of the amounts. Section 3. Statutory Override Sections 1 and 2 of this article supercede sections 143.041(c)(2), 143.041(C)(3), 143.041(c)(4), 143.042 and 143.044(b) and 143.044(c) of the Texas Local Government Code to provide for the pay as outlined above. ITIV ARTICLE 12 PENSION Each successive year of the Agreement the City shall continue to apply the same contribution level, including any increase or decrease, toward the Firemen's Retirement and Relief Fund to match the City's actual contribution rate to the Texas Municipal Retirement System for that calendar year. 29 ARTICLE 13 DEFERRED COMPENSATION PLAN Section 1. Optional Retirement Program The City will continue to make available the IAFF Financial Corporation 457 Plan ( "IAFF Plan ") as one of the options that a civil service employee in the Department may elect. A civil service employee in the Department electing to participate in the IAFF Plan assumes full responsibility for tax or penalty provisions as applicable under federal, state or local law. 30 ARTICLE 14 ASSOCIATION BUSINESS LEAVE Section 1. Association Business Leave Authorized Association Representatives who are on duty shall be permitted to have paid time off, designated as Association Business Leave (ABL), to conduct Association business under the conditions specified in this article provided that the ABL does not impact the mission of the Department including operations, staffing, training or other scheduled Department functions. Section 2. Permitted Uses of ABL ABL may be used for activities that directly support the mission of the Department or the Association, or are deemed mutually beneficial to both the Department and Association, but do not otherwise violate the specific terms of this article. It is specifically understood and agreed that no paid time off shall be utilized for political lobbying at the local, state, or national level. The Department head will make reasonable scheduling adjustments and accommodations pursuant to ABL requests to allow authorized Association Representatives to participate on behalf of the Association to attend scheduled Meet and Confer negotiating sessions, subcommittee meetings, and joint Labor /Management Committee sessions between the Association and the City. The Association President or his /her designee may be granted reasonable time off pursuant to an ABL request during working hours to investigate and process grievances, to attend Civil Service, Arbitration, or Court Hearings and to represent Association employees in disciplinary action provided that the President or his /her designee shall request permission from his Battalion Chief. Whenever possible, notification is to be made prior to or at the beginning of a shift. The officers of the Association may be granted ABL for membership meetings of the Association that take place when such officers are scheduled to be on duty. This leave with pay shall be limited to one (1) meeting per month not to exceed two (2) hours per meeting. ABL may be granted to three (3) Association representatives to attend the TSAFF Convention and to two (2) Association members to attend the IAFF convention, three (3) to attend the TSAFF Leadership Conference, two (2) to attend the TSAFF Service Training Class, two (2) to attend the IAFF Affiliate Leadership Training Seminar, and two (2) to attend the IAFF Redmond Symposium. The Association shall endeavor to conduct all necessary Association business during the non- working time to the greatest number of Firefighters required for such business to the greatest extent possible. 31 Section 3. Written Request Required All requests for ABL must be in writing and submitted at least three (3) days in advance to Fire Administration but requests should be made as soon as possible. To be considered timely, the request must be received in person, by fax, or by e -mail by noon of the day notice is due. Section 4. Approval of ABL Requests The Department head or the Department head's designee will review timely ABL requests to determine approval based on operations, staffing, training or other scheduled Department functions. 32 ARTICLE 15 CONTRACT INTERPRETATION DISPUTE RESOLUTION PROCEDURE Section 1. Scope of Procedure The City and Association recognize that from time to time disagreements between the Parties may arise as to the application or interpretation of this Agreement. The Parties therefore agree that the purpose of this dispute resolution procedure is to provide a just and equitable method for resolving disagreements between the Parties regarding the application or interpretation of the provisions of this Agreement. Only matters involving the interpretation, application, or alleged violations of a specified provision of this Meet and Confer Agreement shall be subject to this dispute resolution procedure. Any matters for which the right of appeal or review is afforded by Chapter 143 of the Texas Local Government Code are excluded from the scope of this article. Section 2. Application of Procedure If the Association has a dispute with the City regarding this Agreement, the Association Executive Board, or Association's President's designee, should reduce the dispute to writing and deliver it to the City's designated representative, who shall be its Department head or designee. A Firefighter or newly classified employee under Article 2 in the Department may not file a request for contract dispute resolution directly with the City; all resolution requests must be approved and come from the Association Executive Board. Each dispute shall be submitted in writing, and must include, at minimum, the following information: I . a brief statement of the dispute and the facts or events on which it is based; 2. the sections(s) of the Agreement alleged to have been violated; 3. the remedy or adjustment sought; and 4. the bargaining unit member's signature or, if filed by the Association Executive Board, the signature of the Association President or designee. Any claim or dispute by a Firefighter or newly classified employee under Article 2 or group of Firefighters or newly classified employees under Article 2 under this Agreement which includes a claim for pay or benefits for any past pay periods must be filed by the employee with the Association Executive Board within fifteen (15) business days of the date when the employee knew or reasonably should have known of the claim. Disputes by the Association Executive Board, Firefighter, or a newly classified employee under Article 2 shall proceed along the following steps: Step 1. An aggrieved Firefighter or newly classified employee under Article 2 must initiate a dispute with the Association Executive Board within fifteen (15) business days of the date upon which the Firefighter or newly classified employee knew of or should have known of the facts 33 giving rise to the dispute. A copy of notice or receipt of the dispute shall be forwarded to the Department head by the Association Executive Committee within three (3) business days of the receipt of the dispute. The Association Executive Board shall within their sole discretion determine if a dispute exists within fifteen (15) business days of receipt of the dispute. If the Association determines that no dispute exists, the grievance will be deemed denied and it shall notify the Department head in writing that no further proceedings will be necessary. If the Association Executive Board determines that the dispute is valid, it will notify the Department head of such and forward a copy of the grievance to the Department head within fifteen (15) business days after determination. Step 2. Any dispute found to be valid by the Association Executive Board shall be submitted to the Department head within fifteen (15) business days of the Step I decision. After receipt of the dispute, the Department head shall within fifteen (15) business days submit his /her response in writing to the Association Executive Board. If there is no timely reply from the Department head the grievance is deemed denied and will proceed to the next step as indicated. Step 3. If the dispute is not resolved in Step 2, the Association Executive Board may advance the dispute in writing to the City Manager or designee within fifteen (15) business days from receipt of the Step 2 decision of the Department head. The City Manager or designated representative shall review the matter and render a decision in writing to the Association Executive Board within fifteen (15) business days of the receipt of the dispute in Step 3. The City Manager or designee may, at his /her discretion, conduct a conference to further explore the merits of the dispute and to explore resolution options. Step 4. If the dispute is not resolved in either Step 2 or Step 3, either Party shall have the right to seek mediation of the dispute by requesting same in writing within fifteen (15) business days from the Department head's response or the City Manager's response. The mediation will proceed before either a mediator with the Federal Mediation and Conciliation Service or before a mutually agreed mediator. The mediation shall be held in available facilities of the City of Denton. Step 5. If the dispute is not resolved at Step 4, the Association Executive Board shall have fifteen (15) business days from the date of mediation to determine whether it will pursue the dispute under this article through arbitration. Under this step, the Association Executive Board must deliver a letter indicating its election to proceed to arbitration to the Department head and City Manager. Section 3. Arbitration Option The Parties have agreed that all disputes under this Agreement, which concern the application and interpretation of this Agreement, shall be submitted to final and binding arbitration, and the Parties exclude from this Agreement disputes involving statutory application and interpretation for rights and claims not arising under sections 142 or 143 of the Texas Local Government Code. The terms of the Agreement, and any factual issues which are determinative in applying the Agreement, shall be the sole province of the designated arbitrator, and his or her decision shall be final. However, the City will only agree to arbitration on the condition that legal issues which 34 are determinative in any contract dispute are subject to judicial review. This additional exception to the Parties' arbitration Agreement is a narrow one, as reflected by the bargaining history. This contract represents an agreement to submit disputes to arbitration within its scope, and otherwise preserves the existing jurisdiction of Texas Courts over any contract rights and claims not exclusively committed to arbitration. The Parties have agreed that questions of law, which involve either the interpretation and application of state statutes or the application of legal principles from Texas appellate court opinions (or the failure to properly apply such legal principles or opinions) to controversies under this article shall be submitted initially to arbitration, but that either party shall have a limited right of appeal from an arbitration award in the Courts solely for the purpose of reviewing disputed issues of law. No such appeal from arbitration shall include review of any factual determinations by the arbitrator, including credibility of witnesses or weight of the evidence. If an appeal from arbitration based on erroneous application of the law is not successful, the appealing Party shall bear all costs of such appeal. If a dispute is submitted to arbitration, within seven (7) business days, the Department head and /or City and the Association shall select an arbitrator by alternately striking names from the Parties' pre- determined panel of six (6) qualified neutral arbitrators. The process will be as follows: the Association shall strike the first name under this article with the first dispute brought under this article. Thereafter, the first strike shall alternate between the Parties. The panel list is attached as Exhibit "A" to this Agreement. Should any panel member subsequently refuse or be unable to continue to serve on the panel, the Parties may mutually agree to his replacement. The remaining members of the panel will continue to serve for the duration of the Agreement. The arbitration should be held at the earliest available date, but may be continued for good cause shown or upon mutual agreement. Upon written request delivered at least fourteen (14) calendar days prior to the date of the hearing, a party to the proceeding shall provide, no later than seven (7) days prior to the hearing, to the opposing party the names and addresses of witnesses expected to be called at the hearing. In the absence of good or excusable cause, the arbitrator may exclude the testimony of a witness upon the failure of a party to disclose such a witness. The parties, in writing, may request discovery from each other concerning the grievance. Should the opposing party not agree to provide the requested information within seven (7) calendar days of the request; the request shall be deemed denied. The requesting party may then apply to the arbitrator, who shall order such discovery consistent with, but not bound by, the rules of discovery in Texas civil cases. In considering the application, the arbitrator shall consider the burden and expense of producing the information, the need of the requesting party, the amount of time available prior to the hearing, and such other matters as he may deem material. In no event shall discovery be requested within thirty -five (35) calendar days prior to the hearing, unless agreed by the parties. The hearing shall be held in available facilities of the City of Denton and shall be conducted informally, without strict evidentiary or procedural rules. The conduct of the hearing shall be governed by the standard rules of the American Arbitration Association. The arbitrator shall consider and decide only the issue(s) in the dispute statement or submitted in writing by agreement of the Parties. The hearing shall be concluded as expeditiously as possible and the 35 arbitrator's written decision shall be based on a preponderance of evidence within thirty (30) days after close of the hearing, or after receipt of post- hearing briefs if applicable. Section 4. Decision Final and Binding If arbitration is selected, the Parties specifically agree that the arbitrator's authority shall be strictly limited to interpreting and applying the explicit provisions of this Agreement. The arbitrator shall not have authority to modify the Agreement or create additional provisions not included in the Agreement. The Parties agree that neither the City nor the Association shall have ex parle communications with the arbitrator concerning any matter involved in the dispute submitted to the arbitrator. Each Party shall be responsible for its own expenses in preparing for and representing itself at arbitration, but the fees and expenses of the arbitrator shall be borne equally by the Parties. The written decision of the arbitrator shall be final and binding on both Parties and may not be appealed by either Party, except for any decision procured by fraud or collusion, or which exceeds the arbitrator's jurisdiction or which is based on legal conclusions or interpretations which are clearly contrary to existing law. Section 5. Mutual Extension All deadlines within this article may be extended by mutual agreement by the Parties. Section 6. Grievances of Non - Association Members Grievances of Non- Association members must follow the same procedure outlined by this article. However, should the grievance of a Non - Association member require that Association resources be used, the Non - Association member will be required to pay all expenses incurred while pursuing final disposition of their grievance. These shall include cost for payment of Arbitrator fees, counsel fees and any other fees directly related to the grievance. All disciplinary appeals shall follow the procedure as outlined in chapter 143 of the Local Government Code. 36 ARTICLE 16 TERM OF AGREEMENT This Agreement shall have an effective date of October 1, 2015, and shall remain in full force and effect through September 30, 2019 and may be mutually extended by both Parties. 37 ARTICLE 17 SAVINGS CLAUSE, PREEMPTION PROVISION, AND COMPLETE AGREEMENT CLAUSE Section 1. Savings Clause If any provision of this Agreement is rendered invalid by a court of competent jurisdiction, such invalidity shall not affect any other provision of this Agreement, which shall continue to be in full force and effect for the duration of the Agreement, and the Parties shall meet as soon as possible to agree on a substitute provision. However, if the Parties are unable to agree within thirty (30) days following commencement of the initial meeting, then the matter shall be postponed until Meet and Confer negotiations are resumed. This deadline may be extended by mutual agreement by the Parties. To this end, the provisions of this Agreement are severable. This Agreement may be amended by written mutual agreement. Section 2. Preemption Provision The provisions of this Agreement shall supersede the provisions of any statute, Executive Order, local ordinance, or rule, which are in conflict herewith, including for example and not by way of limitation, the contrary provisions of Chapter 143; Ordinances of the City of Denton, Texas; and Local Rules and Regulations of the Firefighter's Civil Service Commission for the City of Denton, Texas. This preemption provision is authorized by section 142.117 of the Texas Local Government Code, and the Parties have expressly agreed that each and every provision involving or creating such a conflict shall have the effect of superseding the statutory standard or result which would otherwise obtain, in the absence of this Agreement. This provision is of the essence to the bargain and Agreement, which has been reached. Section 3. Complete Agreement Clause The Parties agree that each has had full and unrestricted right and opportunity to make, advance and discuss all matters properly within the meet and confer process. This Agreement constitutes the full and complete Agreement of the Parties and there are no others, oral or written, except as specified in this Agreement. 38 SIGNATURE & EXECUTION PAGE THE FOREGOING INSTRUMENT HAS BEEN DULY NEGOTIATED, REVIEWED, AND APPROVED BY EACH OF THE SIGNATORIES INDICATED BELOW: THE CITY OF DENTON, TEXAS (Approved by Denton City Council on of , 2015) IC GEORGE C. CAMPBELL CITY MANAGER JENNIFER WALTERS CITY SECRETARY APPROVED: M. ROBIN PAULSGROVE FIRE CHIEF Dated: Dated: Dated: By: Dated• S; CIZ-s� 4; � Le– Z— �5 / y ITA BURGESS a- ---CITY ATTORNEY THE DENTON POLICE OFFICERS ASSOCIATION (Ratified by DPOA Membership on of By: Dated: JASON BALLARD PRESIDENT DENTON FIRE FIGHTERS ASSOCIATION By: Dated: MIKE HOLDSCLAW SECRETARY DENTON FIRE FIGHTERS ASSOCIATION 39 2015) Norman Bennett Donald Goodman John Barnard Mark Sherman John Allman Louis Berman Wolitz EXHIBIT A PANEL OF ARBITRATORS M EXHIBIT B NEPOTISM POLICY POLICYtADMINISTRATIVE PROCEDUREJADMINISTRATIVE DIRECTIV SECTION: HUMAN RESOURCES REFERENCE NUMBER: 102,08 SUBJECT: EMPLOYEE APPOINTMENT INITIAL EFFECTIVE BATE: 10 -31 -84 TITLE: : NEPO`T'ISM LAST REVISION DATE: 09003/2002 POLICY STATFMENT: The City of Denton shalt not contribute through employment, in -house advancement or transfer process, to the creation of any inequity or impropriety among its employees. City Charter, Section 14.05 states: "No person shall be appointed to an office or be employed by the City of Denton who is related to any member of the City Council within the second degree ofaf mity° or the third degree of consanguinity, and this shall apply to heads of deparments in their respective departments." In a department comprised of more than one operational division, an applicant related within the second degree of affinity or within the third degree of consanguinity to a City employee employed in that operational division will not be eligible for employment within the same division. An applicant f'or a job in a department consisting of one operational division who is related within the second degree of affinity and the third degree ofconsanguinity to an employee of the department will not be eligible for employment in that department, An applicant for a temporary or seasonal position within an operational division of the City may be eligible for the position, without regards to kinship ofothcr employees within that operational division, as long as the period of employment does not exceed 120 days within a tvvclve month period. An applicant for a job in an operational division that reports to or serves as staff' liaison to a City board or commission is ineligible for employment in that division if the applicant is related within the second degree of affinity or the third degree of consanguinity to any member of the board. ADMINISTRATIVE PROCEDURE',: I. KINSHIP For the purposes of this policy, the follovving small constitute familial relationships. A. Consanguinity (Blood Relationships) l st I7en.;rtic Mother Father Son Daaghtcr 'Gil POLICYIADMINISTRATIVE PROCEDUREIADMINISTRAT(VE TITLE: NEPOTISM 2nd Dearee Brother Sister Grandfather Grandmother Grandson Granddaughter 3rd Degree Great grandson Great granddaughter Great grandfather Great grandmother Uncle (your mothers or father's brother) Aunt (your mother's or father's sister) Nephew Cyour brother's or sister's son) Niece (your bmthees or sister's daughter) B, Affinity (Marriage Relationships) I g- Degree Spouse Step-chi ldrcn Mother-in-law Father-in-law Son-in-law Daughter-in-law 2nd Dlxree Brother-in-law Sister-in-law Grandfather -in -taw Grandmother-in-law Grandson-in-law Gra, qddaughter-in-law 42 PAGE 2 OF 4 REFERENCE NUMBER: 102.08 PAGE 3 OF 4 TIVI TITLE: NEPOTISM ( REFERENCE. NUMBER: ! 102.08 li. "Qperstionat divisions" within a department will be detennined by that department's organi7aiionai chart and are not necessarily equivalent to a department's budgetary divisions. Ill_ An applicant shall be required to list all relatives related within the third degree of consanguinity and within the second degree of affinity who are employed by the City or serving on a board or commission on his or her application for employment. Failure of an applicant to list all applicable relatives employed the City or serving on a beard or commission shall result in the disqualification ofthe applicant for which he or she has applied. iV. No current employee may be appointed or promoted to any supervisor's span of responsibility who is related, within the second degree of affinity or the third degrees of consanguinity to that supervisor. V. In the event of promotion or marriage between two City employees, the following shall apply: A. If the affected employees are employed in different departments or different operational divisions of a department. those employees may remain with the City and their job positions will remain unaffected by the marriage or promotion. B. At the discretion of the department director, married employees may remain and urork in the saute division or department provided that one is not directly reportinrg to the other and neither is in the same chain of command. 'fhe affected employees may report to the same director. If however, the affected employees are unable to meet these criteria, then one must seek a transfer to another division of that department or another deparUnenta, This decision shall be made and agreed upon by those employees involved. An employee seeking a transfer will be considered for any City position for which he is qualified but cannot remain in the existing division for more than six (b) months. Qualifications being equal, the transferring employee shall be given preferential treatment,. If a suitable position cannot be found by the end ofthis period, one of the two must terminate or be subject to reassignment if another position is available. Reassignment is subject to the discretion of the City Manager and the individual's skills and qualifications. VI. BOARDS AND COMMISSIONS If employee is already employed with the City of Denton, then the employee is not required to transfer or resign upon the appointment of a relative to a hard or commission. However, an applicant of a relative of an existing board memlk-r or member of a commission is not eligible for employment in the operational division. which serves as the liaison to the board or commission, \ail. If the City institutes a reorganization that changes opLrational divisional or departmental boundaries, and an employee would then be working within the same operational division as, nr supervising, a member of hisnccr immediate family, one of the affected employees must transfer to another operational division. The six (6) month period to arranges transfer may by extended in 30- 43 PAGE 4 OF 4 1OLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE (Conqa!!�. TITLE: NEPOTISM REFERENCE NUMBER: 1 102.08 day increments with the approval orthi-, City Manner, the department director, and the supervisor. The extension shall not cNcccd 90 calendar days. If a transler is not possible, one of the employees will be subject to mandatory reassignment. If this is not possible, one of the employees will be subject to dismissal. The determination of which employee shall be reassigned or terminated will be based upon the business interest of the operational division. For purposes of definition, immediate family applies to the second degree of consanguinity and to the second degree of affinity, Vill. Temporary and seasonal employees of the City or Denton shall be partially exempt in that two or more members of the same family ANbo are related within the second degree of affinity and third degree of consanguinity may be employed within the same operational division as long as the following apply: A. No more than one of the related employ-ees may be a regular (non - temporary and non- seasonal) employee of the operational division. B. The related ernployeeg may not be in a direct reporting relationship with each other- a second level report, or responsible in any manner far the scheduling discipline, or work assignments for each other; and, C. The temporary and smsortal employee,- may not be employed by the operational division for a period tasting longer than 120 calendar days within a t-welve-month period. W City of Denton ' 'AWN99M Chil Service Fire Pqy Plan DEN TON FY2014,,2015 (Effectit-e April 25, 2(115) Revised: 4,115,12015 Step increase, are based on aim versary date- Time- in Rank. " Shift Rate Calculaton- Wd)i + (b*c4d4e� = aurtualized rate a = 2929 mortal hours worked mcludmg F 5 overtime hours (120 actual hours worked * IS pay c ycle3 + 96 actual hours worked * 8 pay q cles). The City adopted a 14 day woi k peno& Per FLS-A, the mwmmmu hours worled before o >-e tme is b =Number ofpay cycles oiertme is worked (18) c = Number of overtime hours per 120 hour pay cycle (14) d = hoiffly rate e = overtime rate (1 "2) 4117,001 S mo Page I of 2 I;;;;;; TypeS At Tone of Promofion AanualizedRate S77,202-07 r$79,7651.75 $82, a5g3 00010 Re Driver Monthly $6,433.51 $6,6148.81 So $6,8C-4.12 -' I 77 Shift Hourly $25-279 $26�125 $26971 40-Hour Hourly $37116 $3U59 $ 1 $39-6111 Annualized Rate $93,718.10 $97,761-52 $101,8D2.04 IC0010 Fire CapL-,ir, monthly $7,809.84 $8.145.80 $8,483.513 Shift Hourly $30.687 $32-011 $33.334 40-Hour Hourly $45-057 $47.001 $48-943 Annualized Rate S1013.694-54 $111.904.87 $117,114.711 ID0010 Fire sattallon Monthly $8,891,21 $9,325.39 $9,7559.57 Chief- Shift Hourly $34.936 $36.642 $38.348 Operat, ns 40-Hour Hourly $5t295 $53-800 $56.305 1 Step increase, are based on aim versary date- Time- in Rank. " Shift Rate Calculaton- Wd)i + (b*c4d4e� = aurtualized rate a = 2929 mortal hours worked mcludmg F 5 overtime hours (120 actual hours worked * IS pay c ycle3 + 96 actual hours worked * 8 pay q cles). The City adopted a 14 day woi k peno& Per FLS-A, the mwmmmu hours worled before o >-e tme is b =Number ofpay cycles oiertme is worked (18) c = Number of overtime hours per 120 hour pay cycle (14) d = hoiffly rate e = overtime rate (1 "2) 4117,001 S mo Page I of 2 I— City of Denton JAL Civil Service Fire Pay Plan DENT ON FY 201-112015 (Effective April 2 5, 2015) Revised: 411512015 Annualized ?mate $77,202.07 S79,785.75 $82,389.43 MOUIly $6,433.51 x5,648.81 $6,8434,12 Specia §ist It 40-Hour Hourly $37-116 $38.358 $39.801 Step increases are based on annivei-m- date. Time in Rank. Note, Fire Marshal andDepu4, Fire Odef are nova - classified posidom. .S'alaiyforeacitpositfotist-itibe determined bly the Fire Chief. 411712015 Poffe, 2 of IIVA A=ualizedP2te $93,718.10 $97,761,59 $101.802.04 IG0050 Fire Nlonlhly $8,89121 59,32539 $9,759.57 100045 Protecton monthly $7,809.84 s9.148.80 $8,483-50 Specialist Ao-Hour Hourly $45.057 $47.001 $48.943 Step increases are based on annivei-m- date. Time in Rank. Note, Fire Marshal andDepu4, Fire Odef are nova - classified posidom. .S'alaiyforeacitpositfotist-itibe determined bly the Fire Chief. 411712015 Poffe, 2 of IIVA Anmiahzed FUte $106,694.54 $111904.67 $117,114.79 IG0050 Emergency Mianagement Nlonlhly $8,89121 59,32539 $9,759.57 I001165 Program Mgr- 40-Hour Hour-h- $51.296 $53.800 $56.305 Step increases are based on annivei-m- date. Time in Rank. Note, Fire Marshal andDepu4, Fire Odef are nova - classified posidom. .S'alaiyforeacitpositfotist-itibe determined bly the Fire Chief. 411712015 Poffe, 2 of IIVA -Annuahzed Rate S106�694-54 $111,904.67 5117.114-79 Deputy, File I001165 Marshal Moutb:y $8,89121 S9 „325.30 $0,759.67 Ana'syst 40-Hour Hourly $51.295 $53800 $56.305 Step increases are based on annivei-m- date. Time in Rank. Note, Fire Marshal andDepu4, Fire Odef are nova - classified posidom. .S'alaiyforeacitpositfotist-itibe determined bly the Fire Chief. 411712015 Poffe, 2 of IIVA AnnualimdRate $93.718-10 $97x761.59 $101,802,04 Recru&ng I00070 Management Moutb:y $7.808.84 $9,146.80 $8,483.50 Ana'syst JO-Hour Hourly $45-057 $47.001 $48.943 Step increases are based on annivei-m- date. Time in Rank. Note, Fire Marshal andDepu4, Fire Odef are nova - classified posidom. .S'alaiyforeacitpositfotist-itibe determined bly the Fire Chief. 411712015 Poffe, 2 of IIVA City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -699, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing contribution to the Denton Firemen's Relief and Retirement Fund by the City; and establishing an effective date. BACKGROUND As you are aware, over the past few months City management has been working with the Denton Fire Fighters Associations to negotiate a renewal to their existing Meet and Confer Agreement. One of the articles (Article 12) in the contract provides for the City's contribution to the Firemen's Retirement and Relief Fund. The City and Association have agreed to continue the matching provision originally established in 2006. Specifically the agreement provides that the City shall apply the same contribution level, including any increase or decrease, toward the Firemen's Retirement and Relief Fund to match the City's actual contribution rate to the Texas Municipal Retirement System for that calendar year, for the term of the 2015 -2019 Agreement. FISCAL INFORMATION Approved contribution rate increases will be programmed in the proposed budget. RECOMMENDATION Staff recommends approval. EXHIBITS 1. Meet and Confer Contract Article for Fire Pension 2. Ordinance Respectfully submitted: Jon Fortune Assistant City Manager Prepared by: Jessica Rogers Assistant to the City Manager City of Denton Page 1 of 1 Printed on 8/13/2015 ARTICLE 12 PENSION Each successive year of the Agreement the City shall continue to apply the same contribution level, including any increase or decrease, toward the Firemen's Retirement and Relief Fund to match the City's actual contribution rate to the Texas Municipal Retirement System for that calendar year. 29 zAordinances \15 \ord fire pension authorization.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING CONTRIBUTION TO THE DENTON FIRE FIGHTERS RELIEF AND RETIREMENT FUND BY THE CITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City Council has authorized the City of Denton to apply the same contribution level, including any increase or decrease toward the Denton Fire Fighters Relief and Retirement Fund to match the City's actual contribution rate to the Texas Municipal Retirement for that calendar year; and WHEREAS, the change of the employer contribution requires approval by ordinance (Tex. Civ. Stat. Ann. art. 6243e, §29(b)); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The rate of contribution by the City of Denton to the Denton Firemen's Relief and Retirement fund shall be the same contribution level, including any increase or decrease to match the City's actual contribution rate to the Texas Municipal Retirement System for that calendar year. SECTION 2. This ordinance shall expire on , after which it will be of no force or effect. 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: -' City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -701, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Fire and Emergency Medical Services CM/ ACM: John Cabrales, Jr. Date: August 18, 2015 SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to (1) 0.529 acre tract and (2) 0.480 acre tract, both tracts located in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached thereto and made a part thereof, located generally in the 2200 Block of East Sherman Street (the "Property Interests "), for the public use of construction of Fire Station Number 4, authorizing the City Manager or his designee to make an offer to (1) Williams Rentals, LLC, a Texas limited liability company (the "OWNER "); (2) successors in interest to the Owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Two Hundred Thirty Three Thousand Five Hundred Dollars and No Cents ($233,500.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached thereto and made a part thereof as Exhibit "B "; authorizing the expenditure of funds therefor; making findings; authorizing relocation expenses and advisory services, if applicable; providing a savings clause; and providing an effective date. (Williams Rentals LLC - Denton Fire Station No. 4 Rebuild) BACKGROUND The Denton Fire Department presented its 2013 Facilities Optimization Study as a supplement to its 2011 to 2015 Strategic Plan, evaluating the location and condition of current Denton Fire Department facilities. The department made recommendations for the addition and placement of future facilities to better serve the citizens of Denton. Through an analysis of its existing facilities' locations and conditions, staff determined within the scope of the report that Fire Station 44 (2110 E. Sherman Dr.) is substandard and needs to be replaced as soon as possible. A recommendation was made to rebuild Station 4. Sargent Appraisal Company has provided a real estate appraisal report in regard to the Williams Rentals, LLC property tracts and the land rights necessary for the Project. Their findings constitute the present offer to purchase. The offer to purchase is for the northern two lots (1.009 acre tract) of an assemblage which includes two owners and multiple tracts, aggregating approximately 2.23 acres. OPTIONS City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -701, Version: 1 1. Approve the proposed Ordinance. 2. Not approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) April 16, 2013 - City Council - Issuance of City of Denton Certificates of Obligation, Ordinance No. 2013.113, April 21, 2015 - Closed Session, briefed City Council FISCAL INFORMATION City of Denton Certificates of Obligation, Series 2013 EXHIBITS 1. Location Map 2. Site Map 3. Ordinance (with attachments) Respectfully submitted: Robin F. Paulsgrove Fire Chief Prepared by: LuAnne Oldham Real Estate Specialist City of Denton Page 2 of 2 Printed on 8/13/2015 Site Map Assemblage Total of Approximately 2.23 Acres Approximately 1.009 Acres Approximately 1.227 Acres N Fire Station No. 4 Rebuild Project W E crry 80 40 0 80 160 240 S ' Feet l T��E NT N Exhibit 2 to the CC AIS 4dea4 & t 5 A 4.np V 4: ndnpt s:Awater engineering \engrAreal estateAprojects \row shared \projects \fire station 4 \williams rentals IleAoffer \williams rentals lic acquisition ordinance(r- lo).doc ORDINANCE NO. 2015- AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE FEE SIMPLE TO (1) A 0.529 ACRE TRACT AND (2) A 0.480 ACRE TRACT, BOTH TRACTS LOCATED IN THE S. MCCRACKEN SURVEY, ABSTRACT NUMBER 817, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF, LOCATED GENERALLY IN THE 2200 BLOCK OF EAST SHERMAN STREET (THE "PROPERTY INTERESTS "), FOR THE PUBLIC USE OF CONSTRUCTION OF FIRE STATION NUMBER 4, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO (1) WILLIAMS RENTALS, LLC, A TEXAS LIMITED LIABILITY COMPANY (THE "OWNER "); (2) SUCCESSORS IN INTEREST TO THE OWNER TO THE PROPERTY INTERESTS; OR (3) ANY OTHER OWNERS OF THE PROPERTY INTERESTS, AS MAY BE APPLICABLE, TO PURCHASE THE PROPERTY INTERESTS FOR THE PURCHASE PRICE OF TWO HUNDRED THIRTY THREE THOUSAND FIVE HUNDRED DOLLARS AND NO /CENTS ($233,500.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "B "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; MAKING FINDINGS; AUTHORIZING RELOCATION EXPENSES AND ADVISORY SERVICES, IF APPLICABLE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (FIRE STATION NO. 4 REBUILD PROJECT) WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that a public use and necessity exists, and that the public welfare and convenience require the acquisition of the Property Interests by the City of Denton, Texas (the "City "). The City Council hereby finds and determines that the acquisition of the Property Interests is necessary for public use to provide fire and emergency medical service to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The City Manager, or his designee, is hereby authorized to make a formal offer to purchase the Property Interests to (i) the Owner; (ii) any and all of Owner's successors in interest to the Property Interests; or (iii) any other parties who may own any interest in the Property Interests, as may be applicable. SECTION 3. The City Manager is authorized to make expenditures in accordance with Ordinance No. 2012 -073, dated April 17, 2012, pertaining to relocation related expenses and advisory services, if applicable. SECTION 4. The City Manager, or his designee, is hereby authorized to (a) execute for and on behalf of the City (i) the Agreement, by and between the City and Owner, or other owners of the Property Interests, as applicable, in the form attached hereto and made a part hereof as Exhibit "B ", with a purchase price of $233,500.00 and other consideration, plus costs and expenses, all as prescribed in the Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Agreement; and (b) make expenditures in accordance with the terms of the Agreement. SECTION 5. The City Manager, or his designee, is directed, by certified mail, return receipt requested, to disclose to Owner, or other owners of the Property Interests, as applicable, any and all appraisal reports produced or acquired by the City relating specifically to the Owner's property and prepared in the 10 years preceding the date of the offer made by the Agreement. SECTION 6. The offer to Owner, or other owners of the Property Interests, as applicable, shall be made in accordance with all applicable law. SECTION 7. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 8. 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 LIM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: I �AG Exhibit A - Property Interests TRACT I: BEING all that certain lot, tract, or parcel of land situated in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, being a part of that certain tract of land conveyed by deed from Walter B. McClurkan, Trustee, to W.E. Williams recorded in Volume 316, Page 426, Deed Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at an iron rod found for corner in the Southeast line of Sherman Drive, a public roadway, said point being the Northwest corner of that certain tract of land conveyed by deed from Peggy J. Morris to Winston C. Moore and Peggy Ann Moore recorded under Clerk's File No. 96- R0022090, Official Public Records of Real Property, Denton County, Texas; THENCE North 29 degrees 08 minutes 06 seconds East, 165.43 feet with Southeast line of said Sherman Drive to an iron rod set for corner; THENCE South 70 degrees 07 minutes 08 seconds East, 144.61 feet to an iron rod set for corner in the West line of Block A of Cambridge Square Subdivision, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Volume 4, Page 38, Plat Records, Denton County, Texas; THENCE South 01 degree 15 minutes 46 seconds West, 104.83 feet with said West line of said Block A of said Cambridge Square Subdivision to an iron rod found for corner, said point being the Northeast corner of said Moore tract; THENCE North 87 degrees 27 minutes 55 seconds West, 214.44 feet with the North line of said Moore tract to the PLACE OF BEGINNING and containing 0.529 acre of land. TRACT II: BEING all that certain lot, tract, or parcel of land situated in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, being a part of that certain tract of land conveyed by deed from Walter B. McClurkan, Trustee, to W.E. Williams recorded in Volume 316, Page 426, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at an iron rod found for corner in the Southeast line of Sherman Drive, a public roadway, said point being the Northwest corner of that certain tract of land conveyed by deed from Peggy J. Morris to Winston C. Moore and Peggy Ann Moore recorded under Clerk's File No. 96- R0022090, Official Public Records of Real Property, Denton County, Texas; THENCE North 29 degrees 08 minutes 06 seconds East, 165.43 feet with Southeast line of said Sherman Drive to an iron rod set for PLACE OF BEGINNING; THENCE North 20 degrees 08 minutes 06 seconds East, 293.14 feet with said Southeast line of said Sherman Drive to an iron rod set found for corner in the West line of Block A of Cambridge Square Subdivision, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Volume 4, Page 38, Plat Records, Denton County, Texas; THENCE South 01 degree 15 minutes 46 seconds West, 305.31 feet with said West line of said Block A of Cambridge Square Subdivision to an iron rod set for corner; THENCE North 70 degrees 07 minutes 08 seconds West, 144.61 feet to the PLACE OF BEGINNING and containing 0.480 acre of land. Exhibit B to Ordinance PURCHASE AGREEMENT 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 PURCHASE AGREEMENT (the "Agreement ") is dated 2015, but effective as of the date provided below, between WILLIAMS RENTALS, LLC (referred to herein as "Owner ") and the City of Denton, Texas ( "City "). WITNESSETH: WHEREAS, WILLIAMS RENTALS, LLC is the Owner of two tracts of land (the "Land ") in the S. McCracken Survey, Abstract No. 817 in the City of Denton, Denton County, Texas, being affected by the Fire Station #4 Rebuild Project referred to herein as the "Project "; WHEREAS, City is in need of certain fee simple lands, being a part of the Land related to the Project; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Project; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City a Special Warranty Deed (herein so called) conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" to that certain Special Warranty Deed, and other interests as prescribed therein (the "Fee Lands "), the Special Warranty Deed being attached hereto as Attachment I and made a part hereof. The Special Warranty Deed shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment I", (the Fee Lands are collectively referred to herein as the "Property "). B. Owner, subject to the limitation of such reservation made herein, shall reserve, for itself, its successors and assigns: all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, its, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. K 2. As consideration for the granting and conveying of the Property to the City, the City shall pay to Owner at closing the sum of Two Hundred Thirty Three Thousand Five Hundred Dollars and No /Cents ($233,500.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Property free and clear of all debts, liens and other encumbrances (the "Encumbrances "). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Property, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4. The Closing (herein so called) shall occur in and through the office of Reunion Title, 2745 Wind River Lane, Denton, Texas, 76210 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 180 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 5. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. 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 3 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. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 6. The date on which this Agreement is executed by the Owner shall be the "Effective Date" of this Agreement. 7.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 8. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS, VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 9. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands or upon the Owner with respect to the Fee Lands after the date of Closing. 4 10. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: OWNER: WILLIAMS RENTALS, LLC Phone_ Telecopy: Copies to: For Owner: Telecopy: CITY: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For City: Larry Collister, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 11. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 12. Owner represents and warrants to the City that (i) it has taken all actions necessary to authorize the party executing this Agreement for and on behalf of Owner to bind, in all respects, Owner to all terms and provisions hereof; and (ii) this Agreement is binding and enforceable, in all respects, against the Owner. 5 13. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deed. 14. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands, City may, at its election, terminate this Agreement at any time prior to Closing. CITY OF DENTON, TEXAS M. GEORGE C. CAMPBELL, CITY MANAGER Date: 2015 ATTEST: JENNIFER WALTERS, CITY SECRETARY Date: 2015 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: AA Date: .2015 N. =101xti� WILLIAMS RENTALS, LLC W. E. Williams, III Manager Date: , 2015 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Reunion Title 2745 Wind River Lane Denton, Texas 76210 Telephone: (940) 382 -3030 Printed Name: Title: Contract receipt date: , 2015 W Attachment I to Purchase Agreement NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS That WILLIAMS RENTALS, LLC, a Texas limited liability company (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas Horne Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. 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. 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 , 2015 WILLIAMS RENTALS, LLC W. E. Williams III, Manager ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on , 2015 by W. E. Williams III, Manager of WILLIAMS RENTALS, LLC, a Texas limited liability company. Notary Public, State of Texas My commission expires: — Upon Filing Return To: Property Tax Bills To: The City of Denton - Engineering City of Denton Finance Department Attn: Paul Williamson 215 E. McKinney Street 901 -A Texas Street Denton, Texas 76201 Denton, TX 76209 EXHIBIT "A" to Special Warranty Deed Legal Description TRACT 1: BEING all that certain lot, tract, or parcel of land situated in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, being a part of that certain tract of land conveyed by deed from Walter B. McClurkan, Trustee, to W.E. Williams recorded in Volume 316, Page 426, Deed Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at an iron rod found for corner in the Southeast line of Sherman Drive, a public roadway, said point being the Northwest corner of that certain tract of land conveyed by deed from Peggy J. Morris to Winston C. Moore and Peggy Ann Moore recorded under Clerk's File No. 96- R0022090, Official Public Records of Real Property, Denton County, Texas; THENCE North 29 degrees 08 minutes 06 seconds East, 165.43 feet with Southeast line of said Sherman Drive to an iron rod set for corner; THENCE South 70 degrees 07 minutes 08 seconds East, 144.61 feet to an iron rod set for corner in the West line of Block A of Cambridge Square Subdivision, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Volume 4, Page 38, Plat Records, Denton County, Texas; THENCE South 01 degree 15 minutes 46 seconds West, 104.83 feet with said West line of said Block A of said Cambridge Square Subdivision to an iron rod found for corner, said point being the Northeast corner of said Moore tract; THENCE North 87 degrees 27 minutes 55 seconds West, 214.44 feet with the North line of said Moore tract to the PLACE OF BEGINNING and containing 0.529 acre of land. TRACT II: BEING all that certain lot, tract, or parcel of land situated in the S. McCracken Survey, Abstract Number 817, in the City of Denton, Denton County, Texas, being a part of that certain tract of land conveyed by deed from Walter B. McClurkan, Trustee, to W.E. Williams recorded in Volume 316, Page 426, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at an iron rod found for corner in the Southeast line of Sherman Drive, a public roadway, said point being the Northwest corner of that certain tract of land conveyed by deed from Peggy J. Morris to Winston C. Moore and Peggy Ann Moore recorded under Clerk's File No. 96- R0022090, Official Public Records of Real Property, Denton County, Texas; THENCE North 29 degrees 08 minutes 06 seconds East, 165.43 feet with Southeast line of said Sherman Drive to an iron rod set for PLACE OF BEGINNING; THENCE North 20 degrees 08 minutes 06 seconds East, 293.14 feet with said Southeast line of said Sherman Drive to an iron rod set found for corner in the West line of Block A of Cambridge Square Subdivision, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Volume 4, Page 38, Plat Records, Denton County, Texas; THENCE South 01 degree 15 minutes 46 seconds West, 305.31 feet with said West line of said Block A of Cambridge Square Subdivision to an iron rod set for corner; THENCE North 70 degrees 07 minutes 08 seconds West, 144.61 feet to the PLACE OF BEGINNING and containing 0.480 acre of land. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -703, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance providing for the expenditure of funds for the emergency repair of fuel lines located at the City of Denton Service Center in accordance with provisions of Section 252.022 of the Local Government Code exempting such purchases from requirements of competitive bidding; and providing an effective date (File 5856- awarded to United Pump Supply in the amount of $60,942.25). FILE INFORMATION During excavation for a planned replacement of the concrete pad surrounding the Service Center fuel island which is located at 804 Texas Street, the underground fuel supply lines were inspected and found to have excessive deterioration. The supply lines had to be replaced and buried to the proper depth to be in compliance with current Texas Commission on Environmental Quality regulations. The fuel island was shut down during this line replacement process and City vehicles were diverted to an alternative fuel site, located at the City's landfill, 1251 S. Mayhill Road. The replacement process is now complete, the pumps have been reinstalled, and new concrete has been poured. Section 252.0022 of the Texas Local Government Code states that exceptions can be made to the competitive bidding requirement when procurement is necessary because of unforeseen damage to public machinery, equipment, or public property. In order to accomplish the fuel line replacement in an expedient manner and minimize the disruption to City vehicle operations, two (2) quotes were obtained from experienced fuel line replacement vendors on June 1 (Exhibit 1). United Pump Supply provided the lowest price. In compliance with the City of Denton Procurement policy, a Declaration of Emergency form was completed and approved (Exhibit 2) and Purchase Order 173074 was issued. A final invoice from United Pump Supply was received on August 5, 2015 (Exhibit 3). RECOMMENDATION Approve the emergency purchase of services needed for the replacement of Service Center petroleum lines from United Pump Supply in the amount of $60,942.25. PRINCIPAL PLACE OF BUSINESS United Pump Supply City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -703, Version: 1 Arlington, TX ESTIMATED SCHEDULE OF PROJECT The replacement of the fuel supply lines was completed on August 3, 2015. FISCAL INFORMATION This emergency repair was funded form the Fleet Services Capital Project account 820013725.1355.30100. Purchase Order 173074 was issued on June 18, 2015 in the amount of $56,307.36. The Purchase Order was revised to add lines for the final project completion amount of $60,942.25. EXHIBITS Exhibit l: Quotes and Comparison Exhibit 2: Emergency Declaration Form Exhibit 2: Final Change Order /Invoice Exhibit 4: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Terry Kader at 349 -8729. City of Denton Page 2 of 2 Printed on 8/13/2015 � 2 k k W V. 2 \ \ 2 k m E _ 2 f I 7 7 G ƒ % 3 f \ 0 / \ \ CL E u % / � / E � / / u bLo / \ § / C) q ƒ / \ \ \ 2 / \ E $ x Lo e \ 70) / \ k \ X -i / / » q q \ X \ / k : / \ % V ( § @ ai ± 2 c 0 � m . . . E / _ / 0 � � u S V � / / ƒ / \ / / -0 m . � » N / \ o / u \ / 2 m L x = = u o L 2 @ f « 7 Ln @ E c / / � . CL c Ln / LL V) 2 CL " 5 2 $ / S q \ ƒ i d o f i a / o & E \ f \ ta $ � { 6 . : / _ m � \ cu 2 n o @ 9 2 ) e 2 § / t ) C: CL � w w ) / E r £ m — :3 — o n 3 g E 8 2 / . .\ V. 2 \ \ 2 k m E _ 2 f I 7 7 G ƒ % 3 f \ 0 / \ \ CL E u % / � / E � / / u bLo / \ § / C) q ƒ / \ \ \ 2 / \ E $ x Lo e \ 70) / \ k \ X -i / / » q q \ X \ / k : / \ % EXHIBIT 1 Quote 1 June 3, 2015 City of Denton United Safeguard Pump 804 Texas Street Services, LTD dba United Denton, TX Attn: Charlie Rosendahl Pump Supply City of Denton -Sumps and Product Line Replacements We thankyau her the oppmfunky to svbadt tbfs pmpasa/aml A2okhrrlwml to )wer lbvorable response. 77re Wort and PrArhv Bsfed below Is blared upon ourfaferpieladon offhe Scope of Work her the protect aaordirrp fa the cres87rxwpmvMed Slfn Plerfr. Prq/edS;perh7aal/ortq Draw/nysand /orAddenda WeprovldeomyVm fghestgaaNfyprvdocfrandserW =sand haw been dohv so since 2936 1. United Pump Supply (hereafter called UPS) proposes to provide and Install two (2) new DPW Fiberglass STP Sumpsr four (4) new DPW Dispenser Sumps and 2" Ameron Fuel line piping and fittings to be replaced from the STPs to the dispensers for the City of Denton, The following equipment Is being provided; (2) OPTSDF-4536 DPW 45" x 36" Fiberglass Tank Sumps, (2) OP611D-42WT DPW 42" Rain tight Steel Manholes, (2) OPSMF6 DPW 6" Tank Sump Mounting Flanges, (4) DS -1120 DPW Dispenser Sumps, (4) SBK11003 DPW Stabilizer bars as well as Entry and Test Boots. UPS will try to reuse the exsting steel piping and flex hoses that are currently filled and In good condition. If any of these parts need to be replaced at the time of Installation, It Will be added to a change order and charged to the customer. 2. All saw cutting, excavating, concrete debris haul -off including the old steel manholes as well as removed STP sumps, and concrete pour back will be the responsibility of the customer. Once the (2) old STP sumps have been removed, UPS will begin the Installation of the new sumps and supply lines. We will disconnect all existing electrical, remove the STPs and disconnect the existing product piping. Once all new STP and dispenser sumps are In place as well as new piping, we wIl reconnect all the necessary equipment end make sure everything Is waking properly. Upon final Installation of all sumps and piping, UPS will baekfill and Install the new 47' manholes. 3. This proposal Includes the cast of environmental servIces which will Include collection of soil samples from the fuel site. Should any samples come back contaminated, then resolution will require a change order which will be billed on a separate time and material basis. This proposal retfects the reuse of existing electrical provisions at the file] dispensers. We assume this eledrical Is In safe and proper working order. Any unforeseen Issues that need to be fixed In order to complete the job will he billed on a time and material basis. The customer understands that at times the entire fuel site will be Inoperative; UPS wlll do Its best to work of ldentiy to minimize downtime. Option 1: Installation of additional OPIC- 2100DEVR (Diesel) $1,400.00. If option 1 Is selected, the spin bucket must be replaced at the some time as the STP sumps. Yes_ No Initial , 4. All work will be completed In accordance with the rules and regulations as set Forth by Local Authodtles Having lurlsdktfon as well as the Environmental Protection Agency, Nallonal Electric Code, International Fire Code, National Fire Protectlon Association and the individual equipment manufacturer specifications, PEA GRAVEL BACKFILL: $ Sr625.00 PERMI7TINGI $ 250.00 BARRICADES /FENCING /EROSION CONTROL: $ 625.00 SOILSAMPLING: $ 2,500.00 OPW SUMPS /FITTINGS /HARDWAREI $ 8,46X.45 PIPE, FITTINGS, SUMPS ft HARDWARE: $ 10,269.90 ELELTRICAL(TECL #30078): $ 7,187.50 EQUIPMENT REQUIRED FOR INSTALLATION: $ 3,362.50 INSTALLATION LABOR: 16 625.00 PRO3ECT SUBTOTAL: $ 54,907.35 ESnMATEDTAX!F--0.-000-0%---1 $ this proposal. By signing where Indicated, the customer (BUYER) accepts and agrees to the Scope of Work, Pricing, Payment Expectatiom and Terries & Conditions. All proposals that exceed $50,000.00 (pre-tax) will require customer acceptance of and signature an a separate 'Project Contract", All applicable Sales and Gross Receipts Tax will be applied unless current and valid Tax Exemption or Re -Sale Certificate Is provided prior to Invoicing. Installment Payments will be Invoked upon equipment receipt in our warehouse and /or as wart progresses until job completion. AN Payments are due immediately upon customer receipt of Invoice in Neu of approved credit terms for Due Upon Contract Signing: ;ipys 27,153,68 Due Upon Completion: SD% ��i 27,4 53'.68 Total For All Payments: 100% S4,g07.35 BUYER: City of Denton SELLER. United Safeguard Pump Services, LTD dba United Pump Supply Printed Name Signature TWO Dat Email Address Jason Crates PrGntorl „N ..�°” �natrdre sales Title out 1cnrtPr ylp!nT9 ,oO" IEnnsli Addi ess AtatIcILMUE ANAe[IID DALLAS/FT. WORTH ri PASO FANM:NG-M u][180021k MIDLANDIOWSS SAN ANIONIOJAUSM 4WAdhd.AV"NE &Ml Ndr Bind 721 N, Oat W P.A-y 1221Taxr Tnrl— 977 Md6m 2 UW.P d 4104 C-* PA 1747 Lr edi Nab. 0&13 NM 67213 Mvaq TXAWr PArgt yTx Mu eP..,TX 774rr A. d Itw,NM6M6i Wk6 AlkM IS dm", Yx 79765 S&e ,Tx M54 105-342 -2624 — 3734a51 617•SB M7 918 6350 S05-31r�7467 X782.2476 432WM132 210845.3m ram aNOaral t I N'.F.*..r em d C"fW.,dW THEHILLCOMPANY EXHIBIT 1 Quote 2 1920 E. Lancaster Bldg. C d Fort worth, Texas 76103 » 817/429 -1171 voice ® 817/534 -4819 fax June 1, 2015 Charlie Rosendahl City of Denton Fuel Services Project Location: 804 Texas Street Denton, Texas Scope of Work We are pleased to provide you with a proposal based on our interpretation of your request for the replacement of double wall flex piping to 2 dual hose diesel dispensers, 2 dual hose unleaded dispenser, 2 tank sumps and all associated fittings. • Obtain state and local permitting to commence and complete work described. • Disconnect all associated fuel system electrical. • All saw cutting and concrete removal to be done by others. • Purge all fuel lines back to tanks. • Excavate existing fuel system piping and tank sumps, • Remove all turbine sumps and fuel piping from tank sumps to existing fuel dispenser pans and dispose of properly. • Excavate new piping trenches to proper depth. • Furnish and install 2 new tank sumps, reinstall sub pumps and reconnect associated electrical. • Furnish and install all new APT XP -150 SC double wall flex piping in new 4" APT DCT -400 flex duct. • Furnish and install all new associated piping fittings and ball valves at turbine sumps. • Furnish and install new flexible entry boots at existing dispenser containment pans. It is assumed that existing dispenser pans can be reused. Additional costs may be incurred if new dispenser containment pans cannot be re -used. • Air test all new fuel system piping and conduct associated inspections • Backflli work area to sub grade • Furnish and install 2 new HD rated man -ways at turbine sumps. • Furnish precision line test after backfill and before concrete pour. Precision tank test is excluded from this proposal. • Restart system and purge fuel lines to dispensers. • Coordinate with the card reader folks the start up. Excluslons /Assumptions: • Any bond costs or additional Insurance cost over and above our standard coverage. • Saw cutting, concrete removal, haul off and new concrete is excluded from this proposal. • Any new electrical. It is assumed that existing electrical conduit and wiring can be re -used, • Any new under dispenser containment pans. It is assumed that existing under dispenser containment pans can be re -used. Base price as specified $ 73,127.00 (all applicable taxes are included) Respectfully submitted, 2)" �7&w& Dugan Finnell (817) 994 -3321 TCEQ UST Contractor Registration; CRP000173 TCEQ LPST Corrective Action Specialist: RCAS00350 Certified wBE /DBE www.thehilicompany,com EXHIBIT 1 THEHILLCOMPANY f 15TIRU TION + TECHNOLOGY 1920 E. Lancaster Bldg. C • Fort Worth, Texas 76103 • 817/429 -1171 voice 817/534 -4819 fax TERMS AND CONDITIONS Acceptance. When Customer signs this proposal it becomes a bona fide contract between Customer and HILCO. There are no other representations, promises, agreements, or understandings, oral or written, apart from the express terms of this document. No waiver, change, alteration, modification, or addition to this contract shall be effective or binding until it Is in writing, dated and signed by an authorized representative of each party to it. Changes. Customer may order changes in the Work. If any change order results in more or less services, labor, materials; or equipment, then the contract price will be increased or decreased accordingly. HILCO is not obligated to begin or make any changes or do any additional work until a written change order, dated and signed by an authorized representative of Customer (which states an agreed price change) is received by HILCO. Related Work. Labor, materials, and outside services to electrical, asphalt, concrete, water and sewer work are not included In Contract unless specified. Delivery. Delivery promises are contingent upon fires, strikes, accidents, lockout, work stoppages, war, riot, availablllty of materials, acts of God, governmental action or regulation, weather, or from any other causes beyond HILCO's control. HILCO shall have no liability whatsoever for any delay, failure to deliver, loss or damage which results from such causes. HILCO will endeavor to maintain schedules, but cannot guarantee to do so. Time for delivery or completion shall not be of the essence of this Contract. HILCO is not liable for any loss or damages resulting from delay, however caused or occasioned, Delivery, unless otherwise specified, does not include unloading. Warranty. HILCO makes no warranties, either expressed or implied, whether of merchantability, fitness for purpose, or otherwise, except as follows: (a) if the work is supplied by HiLCO, HILCO warrants that the work will be suitable for the purposes for which it was designed and /or intended and that all work will be free of defects of workmanship for a period of one (1) year from the date of completion; (b) if the finished part or component sold is not manufactured by HILCO, HILCO makes no warranties whatsoever as to such part or component. If such part or component is covered by a manufacturer's or supplier's warranty and such warranty may be extended to the Customer, then such part or component is warranted only to the extent HILCO is able to enforce such warranty against the manufacturer. Hold Harmless. Client will hold HILCO and its directors, officers, agents, employees and subcontractors harmless from all claims and demands or causes of action, and all costs, losses, liabilities, expenses and judgments rendered against HILCO, including attorney's fees and court costs (collectively referred to as "the damages "), brought by any of Client's employees or representatives or by any third party, which Is based upon, in connection with, resulting from or arising out of Client's actions or inactions under this Contract or Client's use of the work to be performed by HILCO under this Contract. At the option of HILCO, Client shall defend and hold harmless HILCO, its directors, officers and employees from any claim, demand or cause of action resulting from or arising out of Client's actions or Inactions under this Contract or Client's use of the work to be performed by HILCO; provided, however, that to the extent Sections 130.001 -005 of the Texas Civil Practice and Remedies Code are applicable to this Contract, Client's contractual obligation to hold harmless shall be limited as prescribed by Sections 130.001- 005. in the event that both Client and HiLCO are adjudicated at fault with respect to damage or injury sustained by any claimant as a result of Client's use of the work, then Client shall hold HILCO harmless for the portion of the damage or injuries adjudicated to have been caused by Client. It is the understanding of Client and HILCO that HILCO's liability for any claim, demand, cause of action or judgment shall be limited solely to any error, omission or negligence of HILCO, its agents, servants, employees or subcontractors in the performance in the work required to be performed by it under this Contract and not for any error, omission or negligence of any person or entity who is not agent, servant, employee or subcontractor of HILCO engaged in the performance In the work required to be performed by HILCO under this Contract Title and Risk of Loss. Full risk of loss (including transportation delays and losses) shall pass to Customer upon delivery of products /equipment to the F.O.B. point. However, HILCO retains title, for security purposes only, to all products /equipment until paid in full. HILCO may, at HILCO's option, repossess the same, upon Customer's default in payment hereunder, and charge Customer with any deficiency. Customer shall obtain and maintain in force fire, theft, and other casualty insurance, including vandalism, during installation in amounts necessary to recover any losses resulting to HILCO for any losses or damage at the job site to HILCO's construction equipment or the equipment to be installed pursuant to this agreement, except any such loss or damage which is caused solely by TCEQ UST Contractor Registration: CRP000173 TCEQ LPST Corrective Action Specialist; RCAS00350 Certified WBE /DBE www.thehillcompany.com EXHIBIT 1 THEHILLCOMPANY COWSTRUOTION * TGGHNOLOGY 1920 E, Lancaster Bldg. C • Fort Worth, Texas 76103 • 817/429 -1171 voice * 817/534 -4819 fax HILCO's employees or agents. It is specifically understood that Customer shall be responsible for any and all such loss or damage which Is not caused solely by HILCO, its employees and agents. Taxes. Prices quoted on equipment and repair parts are subject to all Federal, State, and local taxes which may be in effect or which may be imposed prior to or at the time of the actual shipment of materials and equipment. Returned Goods. No goods may be returned without HILCO's written permission. If such authorization is given, unless otherwise noted In the authorization, transportation charges must be prepaid by Customer. All goods authorized for return are subject to HILCO's inspection and acceptance. Merchandise must be returned within 30 days of Customer's receipt of written authorization from HILCO and must be accompanied by the invoice number and /or copy of the sales receipt. All material returned that is a non- stocking item will be subject to a 25% handling charge. All stocking items will be subject to a 20% restocking charge. It is understood that no goods can be returned for credit without adhering to the above conditions. Excavating:. Excavating quotations are based on normal soil conditions. In the event of HILCO encountering any cave -in, any underground structures, cables, conduit, debris, rock, water, running sand, concrete foundations, poles, manholes, or similar non - visible obstructions are encountered, destroyed or damages during the performance of this contract, HILCO shall not be held responsible. Should any non - visible obstructions or unforeseen underground conditions be encountered, removed or destroyed, and if additional work is necessary to either preserve or destroy these unforeseen obstacles and to complete the excavation, such extra work shall be at Customer's expense. Mechanical compaction of backfill is not included in the contract unless specified. Finished grades are to be established and verified by Customer. If it becomes necessary for HILCO to abandon the site of excavation, any expense incurred for work performed, or additional work necessary to complete the contract, shall be borne by Customer. Customer assumes all responsibility for extra costs that may be incurred due to OSHA job site inspection. Floatina Tanks. Customer will be responsible for filling all underground storage tanks with product for ballast. in the event a tank Is not filled as required, Customer accepts responsibility for damage that may occur from tank floating because of water, and accepts the expense for equipment, labor and materials to reinstall tank. If product is not available, tanks shall be filled with water. There is an additional charge for the water and removing the water. Terms. Terms are net on completion of all services or installation work In total, unless otherwise specified. Terms on equipment, unless otherwise specified, are net 30 days from date of delivery In total. Delivery to HILCO's premises for purposes of convenience or coordination shall be considered "Delivery" for billing purposes. HILCO will require progress payments, covering the cost of materials and the cost of labor. The cost of labor will be predicated upon the percentage of completion of the contract, Customer will be sent an Invoice by the last day of the month for the value pf the materials stored and /or for the value of work completed. Customer shall pay the same within 15 days of the date of HILCO's invoice. In the event Customer fails to pay any progress payment within 15 days of the date of HILCO's invoice, HILCO may, upon 5 days written notice to Customer, suspend work, terminate the contract, or exercise any other rights it may have without Incurring any liability whatsoever to Customer. Such rights include, but are not limited to, recovering from Customer payment for work executed and for any proven loss sustained upon any materials, equipment, tools, and construction equipment and machinery. Interest and Attorney's Fees. HILCO reserves the right to charge Customer 1.5% per month on past due balances. This represents an annual interest rate of 18.0 %. Customer agrees to pay HILCO reasonable attorney's fees, court costs, and all other costs incurred by HILCO, if this account is placed in the hands of an attorney for collection, whether by suit or otherwise. Lien Rights. To protect all parties, a mechanic's lien affidavit will be filed where payment is not received according to the terms stated in this contract. The undersigned represents that undersigned is the Owner or has full authority to contract for the goods and services described and to cause a lien to be effected against the property. TCEQ LIST Contractor Registration: CRP000173 TCEQ LPST Corrective Action Specialist: RCAS00350 Certified WRE /DBE www.thehilicompany.com EXHIBIT 2 Estimated expenditure for the above commodity or service: $ 56307.35 File #: �C Requisition #: 124515 Date: 6/ 12/15 Initial all entries below that apply to the proposed purchase, under the Purchasing Procedures as passed by City Council. (More than one entry may apply.) 1. V Emergency situations, including procurements necessary to protect the public / health or safety or in response to a public calamity; 2. V A procurement necessary because of unforeseen damage to public equipment, machinery, or other property; Brief Description /Justification for exception: While excavating for the replacement of concrete at the fuel island it was discovered that the current fuel lines in the ground were in disrepair. The fuel lines are also not buried to the depth required by TCEQ regulations. The material wi II take approximately 2 weeks with 2 weeks of work to occur after material delivery. The current state of the fuel island with on 50% of the dispensers operational coupled with the long lead time for materials is the reason Fleet is requesting an emergency purchase. Respectfully Submitted by, 44 DepV'1; Director Date Approved by M a� rg, Cninphell Date City Manager 1�eNyjcwvcd by: Elton Brock Date Purchasing Manager Reviewed By: Anita llurgese' Date City Attorney This form must be attached to a purchase requisition if the expenditure is under $50,000. This form must be attached to a completed Agenda Information Sheet if the expenditure exceeds $50,000. EXHIBIT 3 I—Iii United Pump Supply A10 ��� Su 721 N. Great SW Pkwy 11I11 Arlington, TX 76011 (817) 530 -1917 Invoice Date: 8/5/2015 Invoice No.: 597079 Bill to: City of Denton 804 Texas St. Denton, TX 76201 -4299 (817) 695 -6701 (fax) Service at: CITY OF DENTON 804 TEXAS STREET DENTON, TX 76209 Customer ID: 18359 Description: Work Order 470599 C- Install Reference: Work Order 470599 Terms: C.O.D. Customer PO Number: 173074 Item Description Quantity Unit Price Amount Replacing 4 dispenser Sumps and 2 STIR Sumps along with all new double wall piping. Pea Gravel Backfill $5,625.00 Permitting Barricades, Fencing, Fittings, Hardware Soil Sampling OPW Sumps, Fittings, Hardware Pipe, Fittings, Hardware Electrical Equipment Required for Installation Installation Labor Replacement of Spill Bucket Change Order 1 $250.00 $625.00 $2,500.00 $8,462.45 $10,269.90 $7,187.50 $3,362.50 $16,625.01 $1,400.00 $4,634.89 Miscellaneous Subtotal: $60,942.25 Subtotal: Sales Tax: Payments: $60,942.25 $0.00 $0.00 Total Due: $60,942.25 EXHIBIT 4 ORDINANCE NO. AN ORDINANCE PROVIDING FOR THE EXPENDITURE OF FUNDS FOR THE EMERGENCY REPAIR OF FUEL LINES LOCATED AT THE CITY OF DENTON SERVICE CENTER IN ACCORDANCE WITH PROVISIONS OF SECTION 252.022 OF THE LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5856 - AWARDED TO UNITED PUMP SUPPLY IN THE AMOUNT OF 60,942.25). WHEREAS, state law and ordinance require that certain contracts requiring an expenditure or payment by the City in an amount exceeding $50,000 be by competitive bids, except in the case of public calamity where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or in case of unforeseen damage to public property, machinery or equipment or where the procurement is necessary to preserve or protect the public health or safety of the city's residents under Section 252 of the Local Government Code; and WHEREAS, the City Manager has recommended to the City Council that it is necessary to purchase goods or services due to the following emergency conditions outlined in the memorandum attached hereto, incorporated herein by reference; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby determines that there is a public calamity that makes it necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or to provide for unforeseen damage to public property, machinery or equipment, or to preserve or protect the public health or safety of the city's residents and by reason thereof, the following emergency purchases of materials, equipment, supplies or services, as described in the "Purchase Orders" referenced herein and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 5856 United Pump Supply $60,942.25 SECTION 2. Because of such emergency, the City Manager or designated employee is hereby authorized to purchase the materials, equipment, supplies or services as described in the Purchase Order on file in the office of the Purchasing Agent, and to make payment therefore in the amounts therein stated, such emergency purchases being in accordance with the provisions of state law exempting such purchases by the City from the requirements of competitive bids. 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 5856 to the City Manager of the City of Denton, Texas, or his designee. EXHIBIT 4 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 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ffig Estimated expenditure for the above commodity or service: $ 56307.35 File Requisition #: 124515 Date: 6/ 12/ 15 Initial all entries below that apply to the proposed purchase, under the Purchasing Procedures as passed by City Council. (More than one entry may apply.) 1. V Emergency situations, including procurements necessary to protect the public / health or safety or in response to a public calamity; 2. V A procurement necessary because of unforeseen damage to public equipment, machinery, or other property; Brief Description /Justification for exception: While excavating for the replacement of concrete at the fuel island it was discovered that the current fuel lines in the ground were in disrepair. The fuel lines are also not buried to the depth required by TCEQ regulations. The material wi II take approximately 2 weeks with 2 weeks of work to occur after material delivery. The current state of the fuel island with on 50% of the dispensers operational coupled with the long lead time for materials is the reason Fleet is requesting an emergency purchase. Respectfully Submitted by, De iaili. Director Date Approved by �. t t nl�l�c:il ' Date City Manager I� eNy cwvcd by: Elton Brock Date Purchasing Manager Reviewed By: Anita llurges.e, ' Date City Attorney This form must be attached to a purchase requisition if the expenditure is under $50,000. This form must be attached to a completed Agenda Information Sheet if the expenditure exceeds $50,000. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -704, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 18, 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 the design of the City of Denton Traffic Control and Communications Building; providing for the expenditure of funds therefor; and providing an effective date (File 5864- awarded to WRA Architects, Inc. in an amount not -to- exceed $122,500). FILE INFORMATION This Professional Services Agreement is for the design of a new building for the Traffic Control Division. The building will be a pre- engineered metal building structure which will consist of individual offices, a kitchen area, conference room, sign room, and wash rooms. Staff parking will be designated around the building along with a separate site access for public vehicles and city vehicles. The building will be located on a four (4) acre site that the City of Denton already owns. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. WRA Architects, Inc. has a proven track record with the City of Denton and has performed design services for the City of Denton on previous projects such as the Police Department Training Facility and Solid Waste Building schematic design. RECOMMENDATION Approve a Professional Services Agreement with WRA Architects, Inc in the amount of $122,500. PRINCIPAL PLACE OF BUSINESS WRA Architects, Inc Dallas, TX City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -704, Version: 1 ESTIMATED SCHEDULE OF PROJECT The contract will remain in effect through the construction phase of the project. Construction is anticipated to be completed seven (7) months from the time the contract is awarded to the selected construction contractor. FISCAL INFORMATION This project will be funded from the Transportation Capital Project Account 360128467.1360.40100. This project is a 2014 bond election project. Requisition 4124475 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Ordinance Exhibit 2: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Dean Hartley at 349 -8243. City of Denton Page 2 of 2 Printed on 8/13/2015 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 THE DESIGN OF THE CITY OF DENTON TRAFFIC CONTROL AND COMMUNICATIONS BUILDING; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5864— AWARDED TO WRA ARCHITECTS, INC. IN AN AMOUNT NOT -TO- EXCEED $122,500). 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 WRA Architects, Inc., to provide professional design services for the City of Denton Traffic Control and Communications Building, 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 5864 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 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY - BY: EXHIBIT 2 j I City of Denton Contract # 5864 City of Denton Traffic and Communications Building Design Services EXHIBIT 2 CONTRACT #5864 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the 18" day of August, 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 WRA Architects, Inc., with its corporate office at 12377 Merit Drive #1800, Dallas, Texas 75251 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 architectural services in support of the design for the City of Denton Traffic and Communications Building. This building will be a pre- engineered metal building structure, which will be located on a four (4) acre site the City already owns. The building will consist of individual offices, kitchen area, conference room, sign room, and wash rooms, along with new parking around the building. The project shall be completed in five (5) separate phases: Phase 1 — Schematic Design Phase, Phase 2 — Design Development Phase, Phase 3 — Construction Documents Phase, Phase 4 — Bidding and Negotiations Phase, and Phase 5 — Construction Administration Phase. Phase I — Information Gathering and Schematic Design, shall include the following: 1. Zoning/Platting Research — Design Professional will meet with the City of Denton to understand the constraints and parameters affecting the proposed sites. 2. Programming — Design Professional will meet with all appropriate parties to determine a preliminary program. 3. Design Meeting — Design Professional will conduct a one and a half day design meeting with the owner. The meeting will begin with reviewing the owner's project goals and requirements. Then the program will be refined and a preliminary floor plan and site plan will be produced. 4. Schematic Design — Design Professional will continue to refine the building's plan and elevations until they met the Owner's requirements. Design Professional will produce a Schematic Design Package for the Owner's review and approval. After approval from the Owner, Design Development Phase will commence. Services in this phase are defined in AIA Document BI01, 3.2. Page 1 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 5. Pre - application Submission — Design Professional will submit to the City a site plan, floor plan, and questions to the City. These plans and questions will be reviewed by the City in advance of the Pre - application Conference. With the following deliverables: D1. Code and Zoning Research Report D2. Schematic Design Package D3. Pre - application Package Estimated completion time: (This phase has already been completed) Total amount (already aid $10,000 Phase 2 — Design Development, shall include the following: 1. Design Development — During this phase the documents produced in the Schematic Design Phase are further developed. In this phase the mechanical, electrical, plumbing, and structural systems are refined. Additionally, architectural details such as for doors and windows are produced. Design Professional will produce a Design Development Package for the Owner's review and approval. After approval from the Owner, Construction Documents Phase will commence. Services in this phase are defined in AIA Document B1 01, 3.3.1 and 3.3.3. With the following deliverables: D4. Design Development Package Estimated completion time:, 11', ' weeks from notice of award. Total amount for this hase $27 67S Phase 3 — Construction Documents, shall include the following: 1. Contract Documents — In this phase, construction documents and specifications are produced. Depending on timing and /or the Owner's wishes, separate Permit and Construction Sets can be produced. 2. Construction Cost Estimate — Design Professional will send the 75% CD Package to a third party cost estimator for a construction cost estimate. The cost estimate will be completed with the 75% CD level. The cost of the third party cost estimate will be a reimbursable expense. 3. Permit Application — Design Professional will submit the construction set for permit. With the following deliverables: D6. 50% Progress Set D7. 90 % Progress Set D8. Construction Cost Estimate D9. Construction Set Estimated completion time: weeks from Owner's approval of Design Development Package. Total amount for this phase $45,100 Page 2 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 Phase 4 — Bidding and Negotiations shall include the following: 1. Distribution of Documents — Design Professional will aid in the distribution of documents to potential bidders in electronic format. 2. Pre -Bid Conference and Tour — Design Professional will administer a conference and tour of the site for prospective bidders. 3. Addenda — Design Professional will respond to questions to potential bidders and provide clarification if necessary in the form of Addenda. 4. Evaluation of Bids - Once bids are received and opened by the City, Design Professional will aid in the evaluation of the bidders. Estimated completion time: 4. da � . Total amount for this-,phase $6.150 Phase 5 — Construction Administration shall include the following: 1. Construction Administration — Design Professional will attend weekly meetings during construction, produce Field Observation reports, review submittals, produce responses to Request for Information's, and respond in a professional manner as needed during the construction process. Services in this phase are defined in AIA Document B1 01, 3.6 and in AIA Document A201 -2007. Estimated completion time: 7 months from award of the construction contract. Total amount for this :)hale $23,575 Reimbursable Expenses — Projected not to Exceed Amount Reimbursable Expenses are expenses incurred by the Design Professional, the Design Professional's em- ployees and consultants in the interest of the Project (includes the third party cost estimate for the project) as defined in the General Conditions but not to exceed a total of $15,000 without the prior written approval of the Owner. Total reimbursable amount $101000 Scope of Work Provided by the Client 1. Topographical and Boundary surveys 2. Geotechnical Investigation and Report 3. Soil Investigation if required 4. Texas Accessibility Standard Plan Review and Post - construction Inspection 5. Construction Observation and Materials Testing 6. Preliminary Platting Page 3 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 Items Outside of Scope of Work or Requiring Additional Services 1. Re- designs, new designs, meetings and other costs related to significant changes in scope of work or significant changes to approved designs. This includes work and meetings required to incorporate value engineering items. 2. Work in or adjacent to an existing FEMA flood plain, design services necessary to establish a base flood elevation (BFE), flood plain permitting or flood plain mapping. 3. Non - gravity storm sewer or sanitary sewer systems (systems requiring pump design, i.e. lift stations). 4. Public water or sewer system improvements beyond service connections and any off -site work. 5. SWPPP permits application preparation or drawings 6. Traffic Impact Studies 7. TxDOT Permits 8. Zoning change requests 9. Retaining wall design 10. Environmental site assessments 11. Site features and amenities outside of building footprint and not directly attached to the Building. 12. Currently unidentified specialty electrical, lighting or communication systems, including voice and data, audio /visual, security, or other low voltage electronic systems 13. Design of franchise utilities (gas, electric, telephone, and cable television) Page 4 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 1.1.1 PHASE 1- For Basic Services the total compensation shall be $ 10,000 (already paid). 1.1.2 PHASE 2 - For Basic Services the total compensation shall be $ 27,675. 1.1.3 PHASE 3 - For Basic Services the total compensation shall be $ 45,100. 1.1.4 PHASE 4 - For Basic Services the total compensation shall be $ 6,150. 1.1.5 PHASE 5 - For Basic Services the total compensation shall be $ 23,575. 1.1.6 REIMBURSABLE EXPENSES — shall not exceed $ 10,000. (includes cost estimate from third party) Total Current Fee (based upon a construction cost of $1,500,000) $ 122,500 . Less Amount Paid Already (Credit - Phase 1) $_101000 . Total Not to Exceed Costs to be paid for Current Services $ 112 500 . Progress payments for Basic Services shall be paid upon satisfactorily completion of tasks for the Project. The fee paid to the Architect for these services is currently calculated as at rate of 7.5% of the cost of construction, plus reimbursable expenses. The lump sum fees included in the Phase descriptions are not to exceed costs based upon an estimated construction cost of $1,500,000. Provided the actual construction costs exceed or are lower than the original estimated amount, the Architect and Owner shall negotiate a mutually agreeable change to the sum, and process a duly executed amendment to the contract and change order to the purchase order. 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is stated below: Architect: Principal $175.00 /hour Expert Testimony $195.00 /hour Associates $95.00 - 115.00 /hour Registered Architect $85.00- 90.00/hour Intern Architect /CAD- Drafter $55.00- 75.00 /hour Field Observer $75.00 - $80.00 /hour Secretarial /Word Processing $45.00 /hour Consultants: rates to be determined as needed. 2.2.2 Compensation for Additional Services of outside consultants, including additional engineering services shall be negotiated prior to delivery of the actual service. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses are expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $10,000 without the prior written approval of the Owner. Page 5 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2, Attachment A -The Design Professional's Proposal, Project Schedule, and Pricing Attachments B — Awarded Contractor's documentation, including W -9 form, and Conflict of Interest documentation. 4. Attachment C — Awarded Contractor's certificate of insurance documentation. This Agreement is signed by the parties hereto effective as of the date first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY ffim APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CITY OF DENTON I GEORGE C. CAMPBELL CITY MANAGER WRA ARCHITECTS, INC. DALLAS, TEXAS BY:w,w STEVE SHAFFER, , AIA - PRINCIPAL (SIGNATURE) 'Y OF DENTON Page 6 Contract 5864 Design of Traffic and Communications Building EXHIBIT 2 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"). 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 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. 2-2,11, infinafy-demiltA ANW4 41diCHteS,41101, •C051- 011" eiloh oalegory"of Nv(,v,,k,,i Ti vol ved Anoi,)l Isti uding -flu—Prqj W-aod, establish w"', all elap.sed 0no4ho1or--fi)r- 1ho-jwd(xJ -olArme-44411A)e 23 DESIGN DEVELOPMENT PHASE 23.1 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 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 represents that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 2,3,2'l1,,J)v,ig flw, (,-'os'l in o 11 it thor, [Xma i le'd ,qaton icu I av &sc,,f�ikxl W_Seetken-= . 2.4 CONSTRUCTION DOCUMENTS PHASE 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. 2.43 adviw the previoos nid"wdhy-change �jn requifenlents or -general-market-conditions. The Design Professional shall submit to the Owner a 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, 2.4.4 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. Page 7 C:\Users\2211725\Desktop\Contract 5864 Traffic Building Design\Contract 5864 - Design Services for Traffic Building 7 30 15 - WRA revisions - rev 2.docx EXHIBIT 2 z�/ 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 contract for the Project through method that is legally applicable mthe Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice o the Design Professional, the award of the construction contract ioin the sole discretion vr the Owner. �5.2o the construction wntract amount for the Project exceeds the total construction cost of the Project m set forth in the approved Detailed Statememofnobam Construction Costs mr 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 m reduce m modify the quantity or quality of the work wthat the total construction cost m the Project will not exceed the total construction cost set forth in the approved oeui|euatm*mvmvfrmhxu|eC^numctioncvsto. 2.6.1 The Design Professional's responsibility mprovide Basic Services for the Construction Phase under this Agreement commences with the award ,fthe Contract for Construction and terminates at the issuance m the Owner of the final Certificate for Payment, unless extended under the terms of Subsection o.xz. za.2 The Design Professional shall provide detailed administration vf the Contract for Construction mset forth below. For design professionals the administration ohoo also be in accordance with /xx document A201, nunund Conditions o/ the Contract for Construction, current asvr the date o/ the Agreement m may ho amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also »vio 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 ofthe Owner and Design Professional. 2.6.4 'Me 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 m time during the correction, v, warranty period described in the Contract for Construction. The Design Professional shall have authority m act v^ha`o|rvrtho Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design pmnesvinnm onox observe the construction site m least one time uweek, while construction is in pmgrv,,` and as reasonably necessary while construction io not io progress, m become familiar with the progress and quality of the work completed and m determine ir the work io being performed inxmanner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner x written report subsequent m each on-site visit. on the basis or on-site observations the Design Professional shall keep the Owner informed ^/ the progress and quality vc the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor many subcontractors. The Design Professional represents that he will follow Degree vr Care m 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, uoemrv, payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall innoway after the Design Professional's obligations vrthe Owner's rights hereunder. z�.6 The Design Professional shall not have control over w charge or and shall not be responsible for construction means, methods, techniques, sequences vr procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules vr failure m carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts v,vmi,- oivo;. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or ofany other persons performing portions vf the work. oar The Design Professional shall m all times have access m the work wherever it is in preparation vrprogress 2.6.8 Except mmay otherwise be provided mthe Contract Documents m when direct communications have been specially authorized, the Owner and Contractor shall communicate mmvgnthmocsiunpmfessivnu. Communications by and with the Design Professional's consultants shall m, 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 constitute a representation w the Owner, based on the Design Professional 'o observations m the site m provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed m the point indicated and that the quality v/ the Work i,in accordance with the Contract Documents. The foregoing representations are subject m minor deviations from the Contract Documents cor- rectable puo,movmv|mionmndmoponinunoonnuuivn,exnno,vauymmo*,ianpmhesoiwoiTxeivoumuvvfucudnumroo,pxvne^,xxunmmhe,vonmimtea representation that the Contractor is entitled m payment i^ the amount certifivd. However, the issuance ofu Certificate for Payment shall not »vo representation 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 oo account mr the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor o decision made in good faith either m exercise w 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 or(1) determining compliance with applicable laws, ,mmves, vmmmm,o and mdes� and (2) determining whether ornot the work, when completed, will h^in compliance with the requirements vrthe Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals io not conducted for the purpose or determining the accuracy and completeness ur other details such asdimensions and oomdhes or for substantiating instructions for installation or poahnnxnue o/equipment or ,y,um, amian,m by the Contractor, all of which remain the responsibility vr the Contractor m the extent required vy the Contract Documents. The Design Professional's review shall not constitute approval mroxfetyprecautions Page 8 C:\Users\2211725\Desktop\Contract 5864 Traffic Building Design\Contract 5864 - Design Services for Traffic Building 7 30 15 vvxxmvioivnv - re,zdvux EXHIBIT 2 or, unless otherwise vpevifimahstated hy the Design Professional, v/ construction means, methods, techniques, sequences mprocedures. The Design Professional's approval of a specific item shall not indicate wr which the item i When professional certification mr performance 'mumomhxhcs of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems vrequipment will meet the performance criteria required hr the Contract Documents. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, wimoupnvrtin:u000m^nux^^^noomuifu,emounv*esowyo' the Design Professional as provided in Subsections 3.1.1 and s.»z. 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 or the Contract Documents. 2a.14 On behalf vr the Owner, the Design Professional shall conduct inspections m determine the dates vf Substantial Completion and Final Completion, and if requested hy the Owner shall issue Certificates o/ Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required ov the Contract for Construction to be asoomh|na uv the Contractor and shall issue ufinal certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements mr the Contract Documents vn written request mreither the Owner orContractor. The Design Professional's response m such requests shall xc made with reasonable promptness and within any time limits agreed upon. z.a/o Interpretations and decisions ^/ the Design Professional shall ho consistent with the intent oc and reasonably inferable from the Contrac Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions orthi, Agreement and in the absence vnegligence. 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 m the execution vr progress vf the work as provided iu the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused ux the defective designs the Design Professional prepares; and (3)br acknowledging payment by the Owner or any fees due, shall not xo released from any rights the Owner may have under the Agreement "r diminish any vf the Design Professional's obligations thereunder. z.o.m The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. ARTICLE ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.z and 3.* shall only hm provided ir authorized vr confirmed io writing xy 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 fTvm the Owner mproceed. )f the Owner indicates inwriting that all v, part vf such Contingent Additional Services io not required, the Design Professional shall have no obligation mprovide those services. Owner will he responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due m the negligence vr fault vr Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 o 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 m assist i^ carrying out such additional on-site re,pvoviNUbvo. 3.2.2 Project Representatives shall »n selected, employed and directed hy the Design Professional, and the Design Professional ohuU be compensated therefor as agreed by the Owner and Design Professional. 3-3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: /. inconsistent with approvals m instructions previously given hv the Owner, including revisions made necessary by adjustments m the Owner's program mProject budget; l required or the enactment ornnioioovrcomes.|mv,mreuu|mion,o"hou«"entmm,pmparmimovrxuvxdmumomu.'x x. due m changes required asu result of the Owner's failure m render decision -in o timely manner. 33.2 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 z.o.z. 3-3.3 Preparing ormvina,. Specifications and other xvm^munuxion and u"rn^xina data, and rm,iai^g mxvr ,u,imo in connection with rhonov Orders and Construction Change Directives. 3-3.* Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement v such work. Page 9 c:\uversnu/17zxVDukmpKContructme4 Traffic Building mmiun\Cm.trmct 5x64- Design Services for Traffic Building 7so|r-vvn^ revisions ' rev z.uoo EXHIBIT 2 �3.5 Providing services made necessary by the default of the Contractor, by major defects m deficiencies mthe work of the Contractor, or by fai|mnofperformmnce wr either 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 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 oo construction prior m the completion ^/ the Construction Documents Phase. 33u Notwithstanding anything contained mthe Agreement, Proposal vr these General Conditions mthe contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part ofthe Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. a.* nmmomAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility m other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sitec 3.4-3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the rxdeu. o.4.4 Providing services relative mfuture facilities, systems and equipment. 3.4.5 Providing services minvestigate existing conditions m facilities v,mmake measured drawings thereof. 3�.6 Providing services mverify 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 »r the Owner. 3.4.8 Providing detailed quantity surveys o, inventories or material, equipment xnd|uxvr. a.4.9 Providing analyses o/ 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 i^ the utilization vf 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, sw./s Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3.4.15 Providing services mr 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. a.4./7 Preparing o set vrreproducible record drawings in addition wthose 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 furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained i the Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in pail due to the negligent act or omission of the Design Professional shall be performed by the Design Professional aso part vfme Basic Services under the Agreement with oo additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening v, concurrent negligence or the Owner shall not limit the Design Professional's obligations under this Subsection a.4./x. ARTICLE 4OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the Design Professional regarding requirements uvumpvj,* including (1) the Owner's objectives, (V schedule and design constraints and criteria, including space requirements and relationships, flexibility, expe uuhi|hxopeoa|mwipmom systems and site requirements, mmvmspo i- §ual|yueocrioeui^avomeuimozl/ 4.z The Owner shall establish and update un overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related m all v/ these costs. 4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements xuve been made m fulfill the Owner's obligations moue,mis Agreement. Page 10 C:\Users\2211725\Desktop\Contract 5864 Traffic Building Design\Contract 5864 - Design Services for Traffic Building 7 30 15 - WRA revisions - rev 2.docx EXHIBIT 2 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner msuch authorized representative shall render decisions inu timely manner pertaining m documents submitted oythe Design Professional m order m avoid unreasonable delay in the orderly and sequential progress mr the Design Professional's services. *.s Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site ofthe Project, and a written legal description vr the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and oxvumns; adjacent drainage; rights-of-way, not,ictivno, vasomuots, m`omuuhmvnts, zoning, o*ou reotriodon,, boundaries and oonmvo orme site; mumiono, dimensions and necessary data pertaining m existing buildings, other improvements mmtrees;mminmnnmionvmxeminaavai|uh|vum|uvsemimummUmes.hvm public and private, above and below grade, including inverts and depths. All the information on the survey shall »u referenced mu project benchmark. *.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations. *.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested ur 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 furnish all legal, accounting and insurance counseling services mmay be necessary m any time for the Project, including auditing services the Owner may require m verify the Contractor's Applications for Payment mm ascertain how mfor what purposes the Contractor has used the money paid bymon behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished m the Owner's expense, and the Design Professional shall be entitled m rely upon the accuracy and completeness thereof inthe absence of any negligence on the part of the Design Professional. *.m The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect io the Project vr nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications mbe requested of the Design Professional mDesign 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 m request cmtifiomion that would require knowledge v, services beyond the scope mrthe Agreement. ARTICLE CONSTRUCTION COST 5./ CONSTRUCTION COST DEFINED 5.1.1 'Me Construction Cost shall xw the total cost m 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 furnished by the Owner and equipment designed, specified, selected or specially provided for hr the Design Professional, plus u reasonable allowance for the Contractor's overhead and profit. m addition, o reasonable allowance for con- tingencies shall uo included for market mndidonoot the time vr bidding and for changes in the work during construction. 5.13 Construction Cost does not include the compensation mr the Design Professional and Design Professional's consultants, the costs vf the land, ,imhts-of-w"y, 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 vf the Owner's Project budget, preliminary estimates v/ Construction Cost and detailed estimates vc Construction Cost prepared hy the Design Professional represent the Design Professional's »vmjnuom*maso design professional familiar with the construction industry. uio recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant o,represent that bids m 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. s�.2mo fixed limit vf Construction Cost shall »*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 io writing and signed »r the parties thereto. If such a fixed limit has been established, the Design Professional shall bepermitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are mhv included i^ the Contract Documents, m make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost m the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution ofthe Contract for Construction. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents m the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date ofsubmission of the Construction Documents m the Owner and the date w which proposals are sought. ARTICLE OWNERSHIP AND USE oF mOComxamTm 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments vc 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 t»op/,mtthv Page 11 o:\osemo211 5mw Traffic Building mesignVzoouxcts864- Design Services for Traffic Building 7aon-Wxx revisions - mvz.dvv EXHIBIT 2 Owner uses any of the information or materials developed pursuant m the Agreement in another project or for other purposes than are specified m the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission o, distribution vf documents m meet official regulatory requirements vrfvsimi|mporpvseoinmnnechonwuuthepndommmxm»oummmueum»umiomio^ in derogation of the Design Professional's reserved rights. n/ The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially w perform m accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with m without cause upon thirty (30) days being prior written notice to the Design Professional. All work and labor shall cease immediately upon Design Professional's receipt ofsuch notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt ofsuch notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination ofthe Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project, Design Professional shall cooperate in providing information. 7.2/f the Project iv suspended »y the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice o[ such suspension. When the Project ix resumed, mv000iunprofeo,i^om',compvnouhvnovm|h000nimm|'odjououmnmviuxfo,^xvu^000incunzdinthxintenvptim and resumption vr the Design Professional's services. 7.3 The Agreement may uv terminated hy the Owner upon not less than seven days written notice to the Design Professional in the event that the Project i,permanently u»onuo^xu. z[ the Project i; abandoned »r the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written umim`. 7.4 Failure nc the Owner mmake payments m the Design Professional for work satisfactorily completed in accordance with the Agreement shall ho considered substantial non- performance and cause for mnninmio^. 7.5 If the Owner fails m 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 termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior m termination. ARTICLE PAYMENTS ro THE DESIGN PROFESSIONAL Page 12 c:\nxeru\221172 5ma Traffic Building mesiguVCvntrom:wm Design Services for Traffic Building 7yo/o-wnx revisions - mvz.doc EXHIBIT 2 m.4 PAYMENTS «N ACCOUNT OF ADDITIONAL SERVICES m�/ Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within m days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. uy PAYMENTS WITHHELD m^ deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages mother sums withheld from payments m contractors, or on account of the cost of changes in the work other than those for which the Design Professional uresponsible. nm DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available m Owner vr Owner's authorized representative records vf Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred »r the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts m omissions cf the Design Professional m its officers, shareholders, agents, o, employees in the performance vrthe Agreement. 9.2 Nothing herein shall »e construed m create uliability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE /oINSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has onuing with Best Rate Carriers vrm least oox-v,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. m.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 $|oo.000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits v/ not less than $/oo.000 for each accident including occupational disease. 10.4 Professional LiabiNmsurancvwith limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article mm the time vr the execution n[ the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner 000n additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled o, modified without thirty (30) days' prior written notice m Owner and Design Professional. m such event, the Design Professional shall, prior m the effective date ormv change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE // MISCELLANEOUS PROVISIONS x/./ The Agreement shall bv governed by the laws mr the State ocTexas, 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 representatives to the otherparty 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. //.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 ofthe Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations v, agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. vvue^im,rpnuingm* asmmoeot the executed Agreement, Proposal, these General Conditions and the other attachments referenced m Section avf the Agreement shall to the rmooitmatio reasonably possible hv read wasm harmonize the provisions. However, should the provisions of these documents hoin conflict ovthat they can not xv reasonably harmonized, such documents shall bv given priority in the following order: 1. The executed Agreement z. Attachments referenced in Section »or 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 ofu third party against either the Owner mDesign 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 Page 13 c:\uo,m\2211725{oeokmp\Cvutruot 5864 Traffic Building Design\Contract 5864 - Design Services for Traffic Building 7 30 15 Wex revisions - rev z.uoux EXHIBIT 2 confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.11 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 Adopted 0612912007 Page 14 C:\Users\2211725\Desktop\Contract 5864 Traffic Building Design\Contract 5864 - Design Services for Traffic Building 7 30 15 - WRA revisions - rev 2.docx EXHIBIT 2 I M-] 1 p� EXHIBIT 2 Architectural Services Proposal Revised May 29, 2015 WRA Architects, Inc. is pleased to present the following proposal for Architectural / Engineering Services to the City of Denton for the following project: City of Denton Traffic Building A/E Fee: The Architectural / Engineering Service fee for this project is based on a percentage of construction costs to provide the flexibility for changes inherent in renovation projects. WRA Architects offers a minimum basic services fee of: Seven and one -half percent (7.5 %) of construction costs excluding reimbursables. Pre - design and schematic design services to include space programming, schematic floor plan preparation, building character studies, schematic design opinion of probable cost and a digital rendering of the exterior building character have been provided through a lump sum fee of $10,000. This sum will be deducted from the proposed total fee. Approval of this proposal constitutes Owner Approval of the Schematic Design, attached. This Architectural Services Proposal authorizes WRA to enter into an agreement with the City of Denton for the remainder of the architectural services phases. The scope of the work, represented by the completed and approved schematic design, is understood to include the following: A new building for the traffic department for the City of Denton. This building will be a pre - engineered metal building structure. The building will be located on a 4 acre site the City of Denton already owns. The building will consist of individual offices, kitchen area, conference room, sign room, and wash rooms. New parking around building. Required number of spaces will be determined based on the occupancy count. Separate site access required for public vehicles and city vehicles. General Schedule for the stated A/E basic services for the City of Denton Traffic & Communications Building are generally described as follows: Upon acceptance of this proposal, it is estimated that the development time to prepare the documents for bidding will be approximately twelve weeks. Bidding and negotiation is anticipated to be approximately one month. Construction time is anticipated to be approximately seven months duration. Budgets: The schematic design level opinion of probable cost is $1,500,000. The Architectural /Engineering fees are to include design development, construction documentation, bidding /negotiation assistance, and construction administration. The basic architectural fee includes consulting engineer services for on -site civil engineering, structural design, mechanical, plumbing and electrical engineering services, and landscape architecture. The following consultants are not included in the basic architectural services and would be additional services when needed: Civil Engineering of 'offsite' street modifications and 'offsite' utilities, acoustical design, food service design and any other consultant design services requested by the Owner. The following project related services are not under the Architects' scope of responsibility and are contracted directly with the Owner: boundary and topographic survey, site platting, environmental EXHIBIT 2 testing including asbestos survey, geo- technical investigation and foundation recommendations, construction material testing, HVAC test and balance /commissioning, property corner layout for construction, interior graphics. Reimbursables: The Owner will pay the architect for standard reimbursable expenses as per AIA contract B101. For reimbursable expenses, the compensation will be computed as a multiple of 1.10 times the expenses actually incurred by the Architect. Additional services: Requested by the Owner resulting in added scope to the project are to be reimbursed at the hourly rates identified below. Statements: Statements will be itemized and identified as Basic Services, Additional Services or Reimbursable Expense. Unless otherwise stated, statements will be submitted monthly for charges incurred during the month, and payments will be due within thirty (30) days following receipt of the statement. Initial Fee Billings: Where compensation for Architect's Basic Services is based on percentage of construction cost, progress billings initially will be based on the estimated project construction cost until the actual construction cost is established. Architect is to be compensated for design work requested by the Owner but not included in the construction contract as a result of alternate bids not accepted or reductions in the budget. Percentages below are of remaining fee after $10k SD deduction. Schematic Design Phase .. ......................completed under separate agreement Design Development Phase ...................twenty-five percent 27% Construction Documents Phase ..............forty percent 44% Bid Phase ..................... ...........................five percent 6% Construction Administration Phase......... twenty percent 23% Pa t f r Prqparatio n of Alt rn to 3angd Se rate !Bid IL�ucka s: The Architect shall be reimbursed through the Bidding and Negotiation Phase for all portions of the work that are identified as Alternate Bids or Separate Bid Packages as directed in writing by the Owner, but which are not accepted by the Owner for construction. The amount reimbursed to the Architect shall not exceed eighty (80 %) percent of the A/E Fee as outlined above or 5.2% of the bid price. Schedule of hourly fees: Except as stipulated otherwise in the Owner- Architect agreement, payment for architectural services will be performed at the hourly rates, which follow. These rates and multiples shall be annually adjusted in accordance with normal salary review practices of the Architect: Architect: Principal Expert Testimony Associates Registered Architect Intern Architect /CAD- Drafter Field Observer Secretarial/Word Processing Consultants: $175.00 /hour $195.00 /hour $95.00 - 115.00 /hour $85.00- 90.00 /hour $55.00 - 75.00 /hour $75.00 - $80.00 /hour $45.00 /hour rates to be determined as needed. Proposed Key Individuals: Weston Emmert, AIA, Registered Architect, Associate, Project Manager Hal Hiltz, AIA, Registered Architect, Associate, Specifications Writer Keith Anderson, AIA, Registered Architect, Principal, Director of Design Jay Bullock, Construction Field Observer Architectural Services Proposal City of Denton / WRA #1417 Page 2 of 3 EXHIBIT 2 Proposed Consultants: Unless noted otherwise, the following consultants are included in the basic services fee and will not be compensated as reimbursable expenses provided in the agreement. Civil: RLK Engineering Structural: Randy L. Cooper Consulting Engineers MPE: Reed, Wells, Benson & Co. Statement of Certification: The Texas Board of Architectural Examiners (TBAE) has jurisdiction over complaints regarding the professional practices of persons registered as architects in Texas under the Texas Civil Statutes, Architects' Registration Law, Article 249a. TBAE can be contracted at the mailing address of P.O. Box 12337, Austin, Texas 78711 -2337 or 333 Guadalupe, Suite 2 -350, Austin, Texas 78701 -3948, ph. (512) 305 -9000 or fax at (512) 305 -8900. They can be contacted through the web site at Liftj. jZwtA wi �1 tAte,IX,Ll /prr l,iitects /r' ile ,ht,mrvi. Summary of Fees: For the purposes of the City of Denton's Purchase Order process, the following is a summary of the projected fees for this project, based upon the fee and construction cost information outlined above: Budgeted Construction Cost and initial ME Fee Basis $1,500,000 A/E services fee as a percentage of construction cost 7.5% A/E services fee in dollars $112,500 Projected maximum reimbursable expenses $10,000 Less Fees for Schematic Design services already paid $10,000 Proposed initial Purchase Order sum: $112,500 Please note that should the construction cost for the project increase for any reason, including by not limited to scope increase or construction market bidding conditions, or if the owner request additional scope to be included through alternate bidding, the Purchase Order sum will be increased via the issuance of additional purchase orders, as necessary. Please authorize and return a signed copy to this office if acceptable. If approved, it is understood that a formal agreement to establish applicable terms and conditions will follow. Please do not hesitate to call to discuss any questions or comments you may have. Architect: Owner: WRA Architects, Inc. City of Denton, Texas 1��'��" Signature Date Signature Date Keith Anderson, AIA City of Denton, Texas Principal WRA Architects, Inc. Architectural Services Proposal City of Denton Traffic Facility / WRA #1417 Page 3 of 3 EXHIBIT 2 1 1 mml 1 EXHIBIT 2 City of Denton Purchasing 901 -B Texas St. Denton, TX 76209 Phone: (940) 349 -7100 Fax: (940) 349 -7302 w.dentonourchasing . com Substitute W -9 Form The IRS requires all vendors to complete a W -9 Form. The information on this form must be filled out, signed and submitted by a vendor representative. All information must be completed before a purchase order or payment will be issued. Name as shown on your income tax return: WRA Architects, Inc. Tax ID /Social Security #: 75- 1084671 Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because (a) I am exempt from backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a US citizen or other U.S. person -for fededral tax purposes as defined at the bottom of this page *. Authorized Signature: _- Printed Name: Steven R. Shaffer Maillna Address: Company Name: Contact Name: Steven R Shaffer Address: 12377 Merit Drive Suite 1800 Dallas TX 75251 Check apurooriate box for federal tax classification (reauired): Individual/ ❑ Sole ® Corporation ❑ Partnership Proprietor Must designate C or S ® C Exempt Email: sshaffer@wraarchitects.com Website: wraarchitects . com Phone Number: 214 -750 -0077 Fax Number: 214- 750 -5931 Limited Other ❑ Liability ❑ Please specify: Corporation Business Type ❑ Real Estate Rental /Lease (A1) ❑ Equipment RentaliLease (A -9) ❑ Royalties A -2 y ( ) ❑ MediceUHeaRh Care (A-6) Services Only (A- Merchandise- Merchandise & ❑ 7) ❑ Goods Only (A -7) ❑ Services (A -7) ❑ Legal Firm /Atlomey (A -C) ConsuRanttProf Proceeds from Fees (A -7) Real Estate Purchases (S) Type of Organization; El Minority E] Female Owned El Non Profit E] Historically Underutilized Owned Business 'Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined In Regulations Section 301.7701 -7). COD Page 1 9/23/2011 EXHIBIT 2 Vendor Information Not Required for W -9 Form Remit Address (if different from abovel Company Name: as l in Contact Name: Address: Email: Phone Number: Fax Number: List Products and /or Services Interested In Biddin For Internal Use Only ❑ New Vendor ❑ Vendor Change Vendor Number ❑ Refund Requesting Department: Department Representative (Printed Name) ACH Information - Voluntary ABA Routing #: _111101 737 Contact Name : Mary Elsbecker B k A t# 64245245 an ccoun Bank Name: ACH Email: ACH Email: Phone Number: Fax Number: Date: Purchasing Signature: Date.: City Bank Texas r ^7 _ o M Ct r lAM 1- 800 - 687 -2265 I (we) authorize the City of Denton to deposit payments Into the checking account listed. The authority remains in effect until the City of Denton has received written notification from me of termination in time to allow reasonable opportunity to act on It, or until the City of Denton has sent me written notice of termination of the agreement. Vendor Signature ... _ _ .................. w Print Name /Title Date.......�� . .l_ ._.��.�....._ .._. ��_. �.� COD Page 2 9/23/2011 EXHIBIT 2 _ ....... ..........._ w .......... ...... _ .. _..... _.�..............m.... ........... CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doi business with local governmental entity _ _ y 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 aer on who has a business relationship with local governmental I I p g mental entity. 2- Check this box if you ........ are . filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7"' business day after the date th_e iarig isattVlw filed t utS!ti n -"2irc becomes incgin ileac 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? 171 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? EJ Yes 10 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? [::m] Yes ] 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 EXHIBIT 2 Attachment Contract # 5864 EXHIBIT 2 w�.y DATE (MM /DDNYYY) Nc?' CERTIFICATE OF LIABILITY INSURANCE 8/4/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) midst 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 NAME: CONTACT Brian R Hadar Agency, McLaughlin Brunson Insurance A <3 g Y, LLP PHONE FAI& 12801 N. Central Expressway (Alp nNq,_g751), (214) 503 1212 (AC,Al1o) „(214) 503 -8899 Suite 1710 E-MAIL ADDRESS; Dallas TX 75243 ...... INSURERS) AFFORDING COVERAGE NAIC # .. ....,...m...m,,..,.. -.__. .. ... _- INSURERA Axis.. Insurance CPyRan� ......y. ., __ . -_. - -- _ 37273 '..INSURED (214) 750 -0077 INSURER B. WRA Architects, Inc.. .... ..... .... ............ ...........,,, ........ ...... ... ..... $ INSURER C _ ..... -..., ... ...............................................................................................-..... ,- ......... .... ........ __ ....� — - ....... 12377 Merit Drive INSURER. D.., Suite 1800,.. 'GENERALAGGREGATE Dallas TX 75251 INSURER E: PRODUCTS - COMP /OP AGG ......................... INSURER F: •it ► -i m CERTIFICATE NUMBER: Cert ID 28552 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. IN0'R.� _TYPEOF. „. .... ..�..�ADD B. ......�. ...- POLICYEFF P Td EXP.......... .._........._. .__�._ ..._.... .......i LTR INSURANCE POLICY NUMBER MMIDDIYYYY MM1ODdYYYY' LIMITS GENERAL LIABILITY EACH OCCURRENCE $ ..... .. ... _- COMMERCIAL GENERAL_ LIABILITY PRBM'gI?,.ES (Eu rhrr4xrclv(ure,) $� ,,,m a 1. CLAIMS -MADE OCCUR MED EXP (Any one person) $ .PERSONAL & ADV INJURY $ 'GENERALAGGREGATE $ GEML AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG ......................... $ ........ ... ..m,.. .... POLICY PR wl» LOC $ AUTOMOBILE LIABILITY SINGLE LIMIT ......... I ED� .. (Fa aBtl l ......... __.....__. ANY AUTO BODILY INJURY (Per person) .... ............................... �............... ... $ .._.._... ALL OWNED . SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS NON -OWNED f'ROPEFtiY DAMAGE $ HIRED AUTOS AUTOS _,(Per m0ent) _____ „ „ $ . UMBRELLA LIAB OCCUR ......__........... EACH OCCURRENCE ............ ..--- ..._.- - - -- $ .......................... EXCESS LIAR CLAIMS -MADE ------ AGGREGATE DED RETENTION $ $ WORKERS COMPENSATION WC S"rATU- OTH- AND EMPLOYERS' LIABILITY YIN -----• T.�E, YJ JM)T. E, -- ..................... ................. ............................... ANY PROPRIETOR/PARTNER/EXECUTIVE [--I OFFICER/MEMBER N / A CI D S (Mandatory n ) E.L. DISEASE..- EMPLOYE �E.L.DISEASE $ If yes, describe under DESCRIPTION OF OPERATIONS below - POLICY LIMIT $ A Professional Liability Y MBZ780168/01/2015 4/15/2015 4/15/2016 Per Claim /Annual $ 2,000,000 Aggregate $ DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) The claims made professional liability coverage is the total aggregate limit for all claims presented within the policy period and is subject to a deductible. Thirty day notice of cancellation in favor of the certificate holder. City of Denton 901 -B Texas Street Denton TX 76209 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE h�T-. ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD Page 1 of 1 EXHIBIT 2 Cert 12 J175; DATE (MMIDD/YYYY) EVIDENCE OF PROPERTY INSURANCE THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST. AGENCY., PHONE ,.,. ,.,.,. COMPANY (972) 364 7040 Central Mutual Ins Co PO BOX 828 Roach, Howard, Smith and Barton - Dallas Van Wert OH 45891 8750 N. Central Expressway Dallas TX 75231 )AIG Nn); 972 468 -9080 ADDRESS:oieopoaeoo ®rheb.com . . . . . . . . . . . . . . . . . . . . . CODE: 0802552 SUB CODE: AGENCY 1.046 CUSTgME� Ii119...._._. INSURED WRA Architects, Inc. 12377 Merit Drive Suite 1800 Dallas TX 75251 PROPERTY INFORMATION LOAN NUMBER EFFECTIVE DATE EXPIRATION DATE 9/1/2015 9/1/2016 THIS REPLACES PRIOR EVIDENCE DATED: LOCATION /DESCRIPTION .. [1] Loc: 1 Bldg: 1 12377 Merit Drive, #1800, Dallas, TX 75251. POLICY NUMBER CLP7848049 CONTINUED UNTIL TERMINATED IF CHECKED 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 EVIDENCE OF PROPERTY INSURANCE 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. COVERAGE INFORMATION _ COVERAGE I PERILS /FORMS AMOUNTOFINSURANCE DEDUCTIBLE Comm.Prop -Loc. 1 Bldg: 1 Personal Property - Val: RC - COL. S ecial 274, p 000 500 Comm.Prop -Loc: 1 Bldg: 1 BI Incl Rental Value ALS Comm.Prop -Loc: 1 Bldg: 1 Valuable Papers 100,000 500 Cert Holder Continued: Its successors, Re: Equipment: KIP 7100 SN #12410975. CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. ADDITIONAL INTEREST NAME AND ADDRESS MORTGAGEE X I ADDITIONAL INSURED X I'OSS PAYEE ....LOAN # ............. ................... - --- Archive Supplies, Inc. ........................__.. ----.... - - -- ....... AUTHORIZED . .. ... .... ..._.� _.._._.__e.n., 8925 Sterling, Ste. 150 ORIZED REPRESENTATIVE Irving, TX 75063 ACORD 27 (2009112) © 1993 -2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Page 1 of 1 EXHIBIT 2 AebR& DATE (MMIDDrYYYY) CERTIFICATE OF LIABILITY INSURANCE 08/04/15 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 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 IYeu of such endorsements PRODUCER CONTACT Aon Risk Services, Inc of Florida Aon Risk Services, Inc of Florida NAME, 1001 FL a Miami, , FL 33131 -0937 ll Bay Drive, Suite #1100 AIC No Eu,t, : 800 - 743 -8130 A/C No): 800- 522 -7514 INSURERS) AFFORDING COVERAGE NAIC # INSURER A : New Hampshire Ins Cc 23841 INSURED ADP TotalSource FL XIX, Inc. 10200 Sunset Drive Miami, FL 33173 INSURER B: INSURER C: CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED. INSR LTR ALTERNATE EMPLOYER INSURER D: SUBR WVD WRA Architects, Inc. INSURER E: POLICY EXP MMIDDI 12377 Merit Or Ste 1800 INSURER F: COMMERCIAL GENERAL LIABILITY Ste 1800, TX 75251 rnVFRA111F: CERTIFICATE NUMBER: 1174539 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. LIMITS SHOWN ARE AS REQUESTED. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF MMIDDI POLICY EXP MMIDDI LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE 10 RFNIEII YYYY 17 OCCUR PREMISES Ea ocuu nce MED EXP An one person) -$ $ LCLAIMS-_MADE ...� PERSONAL. &ADVINJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ POLICY D PROJECT 1:1 LOC _ PRODUCTS - COMPIOPAGG $ It, $ OTHER AUTOMOBILE LIABILITY INOM-75 e accide"n1 =IS $ BODILY INJURY Per person) $,., ANY AUTO BODILY INJURY (Per accident) $ ALL OWNED SCHEDULED AUTOS AUTOS ''. HIRED AUTOS AUTOS Pel ocei,denl $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS UAB III CLAIMS -MADE AGGREGATE $ DEC I I RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN WC 034123312 TX 07/01/15 07/01/16 X PER STATUTE OTH- ER E.L. EACH ACCIDENT $ 2,000 000 ANY PRO PRIETOR/PARTNERIEXECUTIVE OFFICER /MEMBER EXCLUDED? NIA E.L.- DISEASE -EA EMPLOYEE $ 2,000X000 (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below E L. DISEASE - POLICY LIMIT $ 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) All worksite employees working for WRA ARCHITECTS, INC,, paid under ADP TOTALSOURCE INC.'s payroll, are covered under the above stated policy. WRA ARCHITECTS, INC, is an alternate employer under this policy, CERTIFICATE HOLDER CANCELLATION City of Denton SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 901 -B Texas Street THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Denton, TX 76209 1 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Zia ©1988 -2014 ACORD ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD EXHIBIT 2 Form W -9 Request for Taxpayer Give Form to the (Rev. December 2014) Identification Number and Certification requester. Do not Department of the Treasury send to the IRS. Internal Revenue Service N N W 115 a 0 w ao C i « N +) C •i C a c m CL n a� a� rn 1 Name (as shown on your income tax return). Name is required on Chas liIn% do not leave this line lbianh, WRA Architects Inc 2 Business name /disregarded entity name, if different from above 3 Check appropriate box for federal tax classification; check only one of the following seven boxes: 4 Exemptions (codes apply only to ❑Individual /sole proprietor or ✓ C corporation certain entities, not individuals; see p p ' ❑ p ❑ S Corporation ❑ Partnership ❑ Trust estate 'instructions on page 3): single- member LLC Exempt payee code (if any) ❑ Limited liability company,. Enter the tax classification (C =C corporation, S =S corporation, P= partnership) ► -- - - Note. For a single- member LLC that is disregarded, do not check LLC; check the appropriate box in the line above for Exemption from FATCA reporting the tax classification of the single- member owner. code (if any) _ (Applies to accounts maintained outside . ❑ Other ie�de unstftactirerr�s,g ► a t� U.S.) us 5 Address (number, street, and apt, or suite no.) Requesters name and address (optional) 12377 Merit Drive Ste 1800 6 City, state, and ZIP code Dallas, Texas 75251 T st account number(s) here (optional) �aj. den t ification Number er _ (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3. Note. If the account is in more than one name, see the instructions for line 1 and the chart on page 4 for guidelines on whose number to enter. Social security number �1CC_ or ................... ............................... Employer identification number TIFiII�Ii�InEIO[�IIO� Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. 1 am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on page 'rgiu w l Signature of Here U.S. person ► General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. Information about developments affecting Form W -9 (such as legislation enacted after we release it) is at www.irs.gov /fw9. Purpose of Form An individual or entity (Form W -9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following: • Form 1099 -INT (interest earned or paid) • Form 1099 -DIV (dividends, including those from stocks or mutual funds) • Form 1099 -MISC (various types of income, prizes, awards, or gross proceeds) • Form 1099 -B (stock or mutual fund sales and certain other transactions by brokers) • Form 1099 -S (proceeds from real estate transactions) • Form 1099 -K (merchant card and third party network transactions) Date 10- /Zb / 1 • Form 1098 (home mortgage interest), 1098 -E (student loan interest), 1098 -T (tuition) • Form 1099 -C (canceled debt) • Form 1099 -A (acquisition or abandonment of secured property) Use Form W -9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. If you do not return Form W -9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding? on page 2. By signing the filled -out form, you: 1, Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income, and 4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting? on page 2 for further information. Cat. No. 10231X Form W-9 (Rev. 12 -2014) City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -706, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance approving the expenditure of funds for the purchase of two high density cross linked polyethylene tanks for the storage of ferric chloride for the Pecan Creek Water Reclamation Plant Phosphorous Removal Project which is available from only one source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from requirements of competitive bids; providing for the expenditure of funds therefor; and providing an effective date (File 5909- awarded to Cortrol Process Systems, Inc. in the not -to- exceed amount of $68,156). The Public Utilities Board recommends approval (4 -0). FILE INFORMATION The Pecan Creek Water Reclamation Plant (PCWRP) regulatory permit requires that the City of Denton meet the phosphorus discharge permit limit by June 2016. The process chosen for meeting the phosphorus limit is the application of ferric chloride to precipitate the phosphorus in the process train. The City's design consultant, CDM Smith recommends that two 12,000 gallon capacity high density cross linked polyethylene tanks be used for storage of the ferric chloride. Staff obtained price quotes from three (3) vendors. The Assmann Corporation high density cross linked polyethylene tanks quoted by Cortrol Process Systems, Inc. were the only tanks manufactured as one piece, rotationally molded, with a uniform wall thickness. This provides greater safety for the chemical storage. The other manufacturers vary the thickness of the tank, with the lowest thickness at the top and highest thickness towards the bottom. Cortrol Process Systems, Inc. submitted the lowest price quote (Exhibit 1), meets all of the specification requirements for the project, and provides a tank with uniform wall thickness. Therefore, staff is recommending them as the single source provider of this product (Exhibit 2). Chapter 252.022 of the Texas Local Government Code exempts from the competitive bid process, those supplies and resources protected by copyright or patent and available as a single source. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On July 27, 2015, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -706, Version: 1 Approve the purchase of two high density cross linked polyethylene tanks for the storage of ferric chloride for the Pecan Creek Water Reclamation Plant Phosphorous Removal Project from Cortrol Process Systems, Inc. in the not -to- exceed amount of $68,156. PRINCIPAL PLACE OF BUSINESS Cortrol Process Systems, Inc. Tulsa, OK ESTIMATED SCHEDULE OF PROJECT The tanks are estimated to be delivered within four to five weeks of purchase order issuance. FISCAL INFORMATION The purchase of the tanks will be funded from the Wastewater Capital Project account 640241545.1360.40100. Requisition# 125109 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Quote Exhibit 2: Single Source Staff Memo Exhibit 3: Public Utilities Board Draft Minutes Exhibit 4: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: PS Arora at 349 -7189. City of Denton Page 2 of 2 Printed on 8/13/2015 CORTROL �3w]�> PROCESS SYSTEMS, INC. www.cortrol.com TO: City Of Denton 1100 S. Mayhill Rd. Denton, TX 76208 ATTN: Mr. Rusty Willard YOUR REFERENCE:Pecan Creek WRP TI - QUOTATION - DATE: 6 -29 -2015 PAGE: 1 OF 2 OUR QUOTATION 4 CTM- 21611 — 3 MC TERMS: Net 30 DELIVERY: See Notes LEAD TIME: 4 - 5 Weeks ARAD/ Garrett, IN THIS QUOTATION SUBJECT TO TERMS OF SALE AND CONDITIONS ATTACHED. IMPORTANT 0 WHEN PURCHASING PLEASE ISSUE AND MAIL TO THE ADDRESS MARKED ® CORTROL PROCESS SYSTEMS, INC. e P.O. Box 9666 • Tulsa, Oklahoma e 74157 -0666 Ph 4 918- 445 -5205 • Ph 4 1- 800 - 652 -6789 • Fax 4 918- 446 -8812 • sales @cortrol.com El NON - METALLIC: PIPING SYSTEMS / VALVES / PUMPS / TANKS / CUSTOM FAB / GRATING / EPDXY FLOORING SYSTEMS We are pleased to provide our quotation, regarding Assmann Corporation high density crosslinked polyethylene tanks. Assmann tanks are one piece rotationally molded with a uniform wall thickness. Ferric Chloride 2 ea) FDO 12000 Gallon XLPE Tank. 143" Dia X 196" Tall. $29,578.00 $59,156.00 Vertical, Flat Bottom, Dome Top. Designed For A Specific Gravity Of 1.9, Natural Color. Includes: 1 ea) 24" Top Bolted Manway 1 ea) 4" Full Drain Outlet Titanium Insert, Polyethylene Coupler 1 ea) 6" PP Mushroom Vent EPDM Gasket PVC Bolts, EPDM Gasket & Poly Screen 1 ea) 3" PVC External Fill Line Assembly With Ball Valve, Quick Disconnect & Pipe Support ( 3" is largest size available for the fill line ) 1 ea) 4" PVC Flange Fitting, Titanium Bolts, EPDM Gasket, Flange Adapter & Internal Siphon 1 ea) 6" PVC Flange Fitting, Titanium Bolts, EPDM Gasket With External Drop Pipe & Supports. 1 ea) 2" PVC Dome Fitting, EPDM Gasket, Flange Adapter 1 ea) Reverse Float Level Indicator 1 ea) FRP Ladder, Cage & Platform 1 ea) Polyethylene Restraint Assembly Galvanized Cables Estimated freight to Denton, Texas 2 loads. FileName: CTM21611 $4,500.00 $9,000.00 EXHIBIT 1 City Of Denton 6 -29 -2015 NOTF.S- 1. Cortrol's "Terms and Conditions of Sale" are attached for your convenience. 2. Delivery of order is "ExWorks Shipping Point" (Incoterms® 2010). 3. Freight is "PPD /ADD" unless otherwise noted. CTM- 21611 -3 MC Page 2 Thank you for the opportunity to quote your requirements. If you have any questions or need additional information, please do not hesitate to call us. Mike Conley cc: Brent Morgan cc: Lonnie Finley FileName: CTM21611 r-A ( jo 0 6 CN (Y) Zt 0 00 z C)f CN 0 1-1 Lf) � w 0 Ln M v-1 4 6 a) 4� u Ll- x oo rj ti) 0 w 0 V < > (3� r,� -j __j cr r, CL < 0 m u E (Y) -4� N C: U-) lo CN U-) 0 0 ,.-I C 0 0 V) m � m lo 41 lo lo � � w 0 0 00 E 4� (3� ti) 0 > (3� r,� 0 cr r, CL 0 m u E (Y) -4� N C: U-) lo " U-) 0 - Fo 0 C) JQ Lf) > N 0 0) lo E lo lo rH U-) 0) 0) 00 C of -C 4-1 U 4-1 0 �t (Y) r- m O 0 00 Ln r-1 �t 0) (Y) Lf) V) 0 C 0 0 ,.-I C 0 0 w m � m lo m lo lo � � w 0 0 00 C (3� 0� p (3� r,� (�? 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H c o N O Q v vi a° m a E N a c m a E 0 _ a a U 3 N t � a'o C: ,o ° O_ o lu . o f -o w E .c aui aEi v o a c c a— o a a> c ra _T U `�' m f9 c c a) U •i f9 yU m O a '- m n u; a E v a a Q O Q) t N m vi ate-+ Q v X a v `—° c E a a a -a a m 0 c O u Q m N c ~ 'v p> c a Q O -a -0 o 0A U O Q CL a a c a 0 c CL a O Q) x m O 6 m Q as Q a E a v o c -a a v m Q o a �- a c "- v 0 a N E o E m 0 m m c w a a E_ u° m T m a — c 0 M E c° u a+' S c a w o o" 3 m U N o N T o E N a :u C) tw v c Q w E o c Q a c a U c r4a > ^ t U -0 m Q) o i O v, m 4- a m ° m Q o �' 'c 0 v a a a U , O a >. • a .tin +_� ,= a s V) o� E cn m m a) M cn c I- a Q a '^ a m N c a m a tin v. o WOO v o c Q) c > c O a E c a s a i c Q 0 0 ° a- m m E Q m} o o- a c— v m a o Q o o U c t t c m LAM = 'a O c a 'LA CJ a O E '= a a aa) O LU "_ -a Q c v, c m c a a w a�i c 0 •aa, _ c u v 0' v T a a c m CL c 0 0 E O" m c mw E w 0 N Q p-0 m N M > c _ Z rQa 0 3 T a' c " mo o o E� c N v- O N c a� aEi O > a� O O v H J c O 0 L U > w O 0 ° E v 4 W �� 41 Q 'a v > L 0 o 1? 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H c o N O Q v vi a° m a E N a c m a E 0 _ a a U 3 N t � a'o C: ,o ° O_ o lu . o f -o w E .c aui aEi v o a c c a— o a a> c ra _T U `�' m f9 c c a) U •i f9 yU m O a '- m n u; a E v a a Q O Q) t N m vi ate-+ Q v X a v `—° c E a a a -a a m 0 c O u Q m N c ~ 'v p> c a Q O -a -0 o 0A U O Q CL a a c a 0 c CL a O Q) x m O 6 m Q as Q a E a v o c -a a v m Q o a �- a c "- v 0 a N E o E m 0 m m c w a a E_ u° m T m a — c 0 M E c° u a+' S c a w o o" 3 m U N o N T o E N a :u C) tw v c Q w E o c Q a c a U c r4a > ^ t U -0 m Q) o i O v, m 4- a m ° m Q o �' 'c 0 v a a a U , O a >. • a .tin +_� ,= a s V) o� E cn m m a) M cn c I- a Q a '^ a m N c a m a tin v. o WOO v o c Q) c > c O a E c a s a i c Q 0 0 ° a- m m E Q m} o o- a c— v m a o Q o o U c t t c m LAM = 'a O c a 'LA CJ a O E '= a a aa) O LU "_ -a Q c v, c m c a a w a�i c 0 •aa, _ c u v 0' v T a a c m CL c 0 0 E O" m c mw E w 0 N Q p-0 m N M > c _ Z rQa 0 3 T a' c " mo o o E� c N v- O N EXHIBIT 1 i i 517 North Kealy Ave. (75057) P.O. Box 915 Lewisville. Texas 75067 I3 ii1111 "'11 c: City of Denton Coi acD Terry Lilley )ate "ellellrllnane 1 ax 6/29/2015 (940) 349 -8622 III..... irrrnaii II'. erry.1illevacityofdenton.corn 811 111113 "'11a: City of Denton QUOTATION 06292015 -D nsu`urne: CoinineiMs I Speciall unc9,u °u.un 4ucuns: Salles CoiMacL Jason ul9,suirngeu Net 30 2 nllnane: 972- 436 -2536 ax 972- 436 -8670 81hIlIl llciiung'�ein ns: Quote Good II':eu: llsflirnMed II'l)elliiaeiy: Best Way 30 Days I ll:::::iiuiiailll ill9,9�slliin geii@el!2dallll is coin t':381 ofMateri,als Qty Illairt ff' escuiic0uo n Unit ll' "mice �o all ll'ruiiee 2 Primary Tank 2 13650 Vert Imfo 1.65 Spg Xlpe Nat $36,114.44 $72,228.88 Tank Fittings: Lid /Manway 2 Cvr Asmbly 24" 8 -blt Fill 2 My Dome Ftg 4" W /flg (special) Pvc /titan /epdm Pump Suction 2 Cmpn Flg Ftg 4" Thrd Pvc /titan /epdm Ss Ring overflow 2 Bltd Spool Ftg 6" Pvc /titan /epdm outlet 2 Bltd Flg Ftg 2" Thrd Pvc /titan /epdm Level element 2 My Dome Ftg 8" Pvc /titan /epdm Vent return 2 Bhf Asmly 1" Sxt H'ward Pvc /epdm Vent 2 U -vent 6" Pvc Level Gauge 2 Level Gage Lrg Flt Type Pvc 2 Hydro Test 2 Impact Test 2 Gel Test Ladder 2 Ladder 16' W /cage W /brkt Frp W/3 ft 6 in walk Thru Label 2 Label Nameplate 2 SS 2 Flexible connection PTFE (stock #9840) - adder- (recommended) $1,581.60 $3,163.20 2 Ball valve 4" PVC (stock #10313) - adder- (recommended) $633.00 $1,266.00 Freight $22,500.00 Exclusions: 1) 1.08 WARRANTY A. The equipment manufacturer shall provide a five (5) year warranty for all tanks and parts associated with the equipment defined by the Specification and the labor associated with repair and /or replacement of the parts. Warranty shall commence upon the first chemical fill for each tank. If the tank(s) should fail during warranty period due to defective construction, they shall be replaced at no charge to the owner. Warranty shallow follow the general requirements of Section 01740. Exception: The standard Poly Processing Company warranty will apply. Section 01740 was not available for review. 2) Drawing M -2 shows ladders with hand railing around the top of the tanks. Exception: We have included a standard tank ladder with cage in FRP. Hand rails on the top of the tank are not included. Total $99,1 58.08 EXHIBIT 1 Environmental Improvements proposes to furnish materials, and or equipment for the above project. Any items not shown above as detailed under `Bill of Materials', or other attachments to this proposal, are EXCLUDED. In Addition, installation labor, misc. plumbing, piping, valves, fittings, chemical supply, gauges, supports, anchor bolts, electrical conduit and any other items not specifically listed above, shall be supplied by others. IF AN ORDER IS PLACED, PLEASE VERIFY THAT THE 'BILL TO" AND 'SHIP TO" ADDRESS LISTED ABOVE IS CORRECT. WE MUST HAVE A NAME AND PHONE NUMBER OF A JOBSITE CONTACT THAT WILL ACCEPT A SHIPMENT BEFORE WE CAN PROCEED WITH AN ORDER. COMPANY PURCHASE ORDER POLICY REQUIRES 1 OF 3 OPTIONS LISTED BELOW BEFORE WE CAN PROCEED WITH AN ORDER. 1.CREDIT CARD ORDER REQUIRES CUSTOMER MUST SUPPLY CARD NUMBER AND LAST 3 NUMBERS ON BACK OF CARD, EXPIRATION DATE, NAME ON CARD AND MUST SIGN, DATE, OUR QUOTE AND FAX BACK. 2.VERBAL PURCHASE ORDER REQUIRES CUSTOMER MUST SIGN, DATE OUR QUOTE AND FAX BACK. 3.PURCHASE ORDER NUMBER REQUIRES CUSTOMER MUST SUPPLY SIGNED, DATED HARD COPY OF PURCHASE ORDER OR MUST WRITE PURCHASE ORDER NUMBER ON OUR QUOTE AND MUST SIGN, DATE OUR QUOTE AND FAX BACK. Acknowledged By: Date: EXHIBIT 2 901 A Texas Street. Denton, TX 76209 Phone (940) 349 -8002 Fax (940) 349 -8057 Web Site: www.cityofdenton.com WATER UTILITY MEMORANDUM DATE: August 3, 2015 TO: Elton Brock, Purchasing Manager FROM: P. S. Arora, Assistant Director Wastewater SUBJECT: 2- 12,000 Gallon Crosslinked Polyethylene Tanks Single Source Purchase The Pecan Creek Water Reclamation Plant (PCWRP) regulatory permit requires meeting the phosphorus discharge permit limit by June 2016. Final design is complete. The process chosen for meeting the phosphorus limit is the application of ferric chloride to precipitate the phosphorus in the process train. Storage of ferric chloride is required for the chemical phosphorus removal project. The design consultant has recommended use of two 12,000 gallons capacity each, high density crosslinked polyethylene tanks for storage of ferric chloride. As such, staff obtained price quotes from three vendors for the purchase of the 2- 12,000 gallon storage tanks. The vendors are listed below; 1. WIPCO Inc. 2. Environmental Improvements, Inc. 3. Cortrol Process Systems Inc. Assmann Corporation high density crosslinked polyethylene tanks supplied by Cortrol Process Systems Inc are the only tanks manufactured as one piece rotationally molded with a uniform wall thickness. The other manufacturers vary the thickness of the tank, with the lowest thickness at the top and highest thickness towards the bottom. The price quote from Cortrol Process Systems, Inc. in the amount of $68,156 is also the lowest, meets all the specification requirements for the project, and being of uniform wall thickness from top to bottom provides greater safety for chemical storage, a very important consideration for chemical storage. As such, the wastewater department is requesting a Single Source purchase from Cortrol Process Systems Inc. who is the sole provider of these tanks in the Dallas area. EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD July 27, 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, July 27, 2015 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901 Texas Street, Denton, Texas. Present: Vice Chair Billy Cheek, Secretary Randy Robinson, Barbara Russell and Lilia Bynum Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Chairman Dick Smith, Phil Gallivan and Charles Jackson OPEN MEETING: CONSENT AGENDA: 5. Consider recommending approval of the purchase of two high density crosslinked polyethylene tanks for storage of ferric chloride for the Pecan Creek Water Reclamation Plant phosphorus removal project from Cortrol Process Systems Inc. in the amount of $68,156. Motion was made to approve item 5 by Board Member Russell with the second by Board Member Robinson. The vote was 4 -0 approved. Adjournment - 10:04 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF TWO HIGH DENSITY CROSS LINKED POLYETHYLENE TANKS FOR THE STORAGE OF FERRIC CHLORIDE FOR THE PECAN CREEK WATER RECLAMATION PLANT PHOSPHOROUS REMOVAL PROJECT WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE 252.022, SUCH PURCHASES ARE EXEMPT FROM REQUIREMENTS OF COMPETITIVE BIDS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5909- AWARDED TO CORTROL PROCESS SYSTEMS, INC. IN THE NOT -TO- EXCEED AMOUNT OF $68,156). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 5909 Cortrol Process Systems, Inc. $68,156 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. EXHIBIT 4 SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5909 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY a BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -707, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 18, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Charter Transportation Services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5803- awarded to Cowtown Bus Charters, Inc. in the three (3) year not -to- exceed amount of $200,000). RFP INFORMATION This RFP is for an annual contract to primarily provide bus transportation for the City of Denton Parks Department programs. The contract scope of work has three (3) sections: Section A is for Senior Center adult day trips to locations within the Metroplex area along with occasional overnight trips to locations such as Oklahoma City. Section B is for transportation related to the City's child summer camp and holiday camp programs. Section C provides for transportation options that could be utilized by other City departments. Requests for Proposals were sent to twenty (20) prospective vendors. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspapers. Two (2) proposals meeting specification were received. The proposals were evaluated based upon price, delivery /project schedule, compliance with specifications, and indicators of probable performance. A Best and Final Offer (BAFO) was conducted which resulted in a price reduction of $205.90 for all line items submitted by Cowtown Bus Charters, Inc. Therefore, staff is recommending award to Cowtown Bus Charters, Inc. as the highest ranked vendor and the best value for the City (Exhibit I- Evaluation and Scoring). RECOMMENDATION Award to Cowtown Bus Charters, Inc. in the three (3) year not -to- exceed amount of $200,000. This amount is based on the estimated number of trips for the Senior Center and child summer camp /holiday camp programs. It also includes a contingency amount for transportation services that may be needed by other departments. PRINCIPAL PLACE OF BUSINESS Cowtown Bus Charters Inc. Ft. Worth, TX City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -707, Version: 1 ESTIMATED SCHEDULE OF PROJECT This is an annual contract with the option to renew for two (2) additional one -year periods contingent upon all prices, terms, and conditions remaining the same. FISCAL INFORMATION Funding for the City of Denton Senior Center Trips will come from the Parks and Recreation Senior Center operating accounts 401150.6389, 411150.6389, and 401150.7879. Funding for the City of Denton Parks Children Trips will come from the Parks and Recreation Camps Fund operating account 411120.6389. Individual purchase orders will be issued as needed. EXHIBITS Exhibit l: Pricing /Evaluation Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Emerson Vorel at 349 -7460. City of Denton Page 2 of 2 Printed on 8/13/2015 - � 2 k k W c 0 � 0 % � O k 0 u W) 0 2 0 CL � k k � u 4 � � / � 0 « LA cc £ 3 & S Q 3 J 3 J 0 \ « 7 / \ ƒ \ \ Lo i \ \ \ \ / n � — u 2 ( _ / 2 ) j ° { r \ § / \ $ 7 & u Q 7 y ƒ 7 f ® e 0 — 0 ƒ j \ \ / \ j + � � � � / u ca ^ } e i / o 0 0 0 0 \ \ } > \ \ \ \ \ \ Lo / / � u e / § § § k J § = = _ _ Q) k \ \ \ \ 0 g 2 _ / / § / ( / ( / k j 0 - § ( ° Q) k k k k 0 0 0 0 0 10, \ 0 m $ � 2 m ? \ k \ § .) % § \ — — — ¢ j & ui ui ui u ui « N § N q / �V _ D \ ) ® ® ® ® ® f f f f < \ \ \ \ « c § § § § 0 3 3 3 3 3 _ 0 0 0 0 0 § § § § § § tz W 1� r4 £ 3 & S Q 3 J 3 J \ « 7 ƒ ƒ EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR CHARTER TRANSPORTATION SERVICES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5803- AWARDED TO COWTOWN BUS CHARTERS, INC. IN THE THREE (3) YEAR NOT TO EXCEED AMOUNT OF $200,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of charter transportation services for the City of Denton 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 5803 Cowtown Bus Charters, Inc. $200,000 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 5803 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 AN COWTOWN BUS CHARTERS INC. (RFP 5803) THIS CONTRACT is made and entered into this date , by and between Cowtown Bus Charters, Inc. a corporation, whose address is 5504 Forest Hill Dr., Ft. Worth, TX 76119, 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 5803- Charter Transportation Services for the City of Denton, 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." RFP 4 5803 IN WITNESS WHEREOF, the parties of these presents have executed this agreement ill the year a.tTd day first above written, CONT701Z (�� ZZ�� Z BY: L x%'7'2 CZ Z'.2 AUTHORIZED SIGNATURE Datc-- 8- 7- /S Name: A H" a Title: (' e e Ile ,917-,531-32- S 7 PHONE NUMBER EMAIL ADDRESS CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: GEORGri C. CAMPBELL, CITY MANAG r-, R Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $200,000. Pricing shall be per Exhibit E attached. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract 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 quarterly. 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 quarterly percentage change in the manufacturer's price list. The price adjustment will be determined quarterly from the award date. Should the change exceed or decrease a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment quarterly 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. RFP 9 5803 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. RFP 4 5803 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. RFP 4 5803 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. RFP 4 5803 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 RFP 4 5803 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 RFP 4 5803 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. RFP 4 5803 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. RFP 4 5803 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 rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. RFP 4 5803 EXHIBIT 3 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. RFP 4 5803 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 RFP 4 5803 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 delivered upon receipt by the addressee. Routine communications may be made by first class RFP 4 5803 EXHIBIT 3 mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 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 own business to protect its own most valuable information, which protective measures shall RFP 4 5803 EXHIBIT 3 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. RFP 4 5803 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. RFP 4 5803 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 may utilize to represent them or otherwise assist them in the mediation. RFP 4 5803 EXHIBIT 3 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 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. RFP 4 5803 EXHIBIT 3 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 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. RFP 4 5803 EXHIBIT 3 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 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 RFP 4 5803 EXHIBIT 3 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 RFP 4 5803 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 or better. Any deductibles or self- insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. RFP 4 5803 EXHIBIT 3 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. RFP 4 5803 EXHIBIT 3 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. RFP 4 5803 EXHIBIT 3 [ ] 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. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] 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. RFP 4 5803 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. RFP 4 5803 EXHIBIT 3 E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 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: RFP 4 5803 EXHIBIT 3 a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. RFP 4 5803 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 RFP 4 5803 ERMBIT 3 (11 or Denwn J!'U'll lk"Pr sunweg or ow Loy or Mon A']"'YA(,',,'I�IME,N"l',�,k-BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1, (on tractor qt boa name and address (kw cwWMdW9 PUMOM: ( Xlt-) 1-0 Lu', ri 13 C )11 curl F yj I r? AS 0 2. SubMdAwy A IndividuaI Association 5, Daw Btablkhcd: J�"" K 7, D(ws yvur couWany have an estaMshed phpical ptrsence W Ac SWW WWI (w We COY Of De,ri(on? q- No, in which? .51 ev I I of -Tpg 6 "') "Ally, f1rovides. Please p,wide a dewiled INUng k"Ifafl Products sel vwes 1hat YoLn' COR111 C ho A e e, I 1 cmnpny filed (w been nmned in any htigmiml WmWvWg yow compiny and the Owna on ,j (,,ou,jtract w,nhin 1he lat O e yram Lmder yow- curmnt oampany name o"ny aker compm); namc? Wo paw hic MAN of Te isms,"'Id WsOklfion if waidable. Include Iawsui s whcre Owner was invokled. t� c) ttn I lave you ever delhWted on or haled u) cw node as emiVact wider pmr OHM R (:onipany name ot "Arly other comp�any mun e"? ff,sci, where and why? Give, nanle and t0eph(,')ne numbe� of'(1wnei Have you ever had a tmrnmet wminmd by the Wvn& If s, where ajul why? Gve narne and tejepgjk)jue injinher (s) of0w,no, (s),, (\J (-,) RITS803 Made rijanspi"Mion ServRes Ar the city on won ioge u =0 ERMBIT 3 Oq ant f Demori RFP hw 0wnm"AwwpwmHOn SemAs Ir Ow (11 of Dcmm l:2, Has your company impkmtyacd an I AnpWyce I Icalth and, "ed'd'y lhupwn comphaid wiIh 29 CF R 1910 "Aneml ImMy Mcluds- and/ur 29 (W 1926 "Art end CoMmedon Stmidmials" as, My apoy to ycmr (Aminpanys cusUmmyWhiCs'? DA R A N S j oc XWKWAYMApe n 9 'I/ e 1:.5 Residetit/Non-Resident Bidder DeternivinatiolE Axas ChvanmeM Adc Section 225ZA02-, Non-resident bidders. Texas law cities and ollici gowt-nmental antis hvni nwanting connects tat as 1,1011-1,esidetil. firm unless 111C,11DOL1111 OF SUCh it bid is lower Ati, the lawcM. bid by a Tex as resident by, the amount, flIcTexas resiclem ""Ould hc� required tai utiderbid in the non-residettt bidders' sime. hi cwder ki make this doemAnuion, please pnwidle Ow narnc, a(kiress and P11011C TIUMber of-, -n,rs principle place of businew a. Responding fit ll Comparly's majorky owner priiiciplc pLace ofbusincss& V\p c, Wtimair Pment (:ojupany's principle place of'busit'iesm tit 5803 (loan ITMwY"vaAnScmkeS Nr dw tiq O")CM011A Page 13 of 20 ERMBIT 3 Ci�y of F)erllon RFJ' for harte, 'I rmi!,,pof tat aon Scm vice's fi"),r the City of Denton I Provide details to Sul mt the evalundon twiNria includin c—Derience and de m/ (y IV Wp Q, op 11 (4 (IN 61",> o U UF My, ocument "A Yj I d ProWc. the 'Weretcholn, I ,a, The delails umsL be c0nijfleted on thk; 11orm, sJ1,111 snot point tcp aii-iother documelo ir� the R'SPOT"bderit's t), S�,gn below ancl return knin with final subn,iission, (" t 6 r) a d i o U Pie . . ... .. LXO too t ki, I be(A -I cenj Out our Rmi nwen the rnkhms qualiBcatAN as MMed W 1his Main document, 3. Ampany RFP5N3 (AwWrlinspmUth"Semia,AmlheCRyofDvnW�i logo 14 of 20 ERMBIT 3 (Ty of Demm RFP R Mw lAnsportafimi Sc rvjccs for the a, -Ity �'A Dcnwn ,,,k']"I' AN, CIIN/lIENB-S(JBI'VIISSION EXCEPTIONS Z Lly c"Xceptions taken '10 O'lis ,"'AcAalbn (MdudWg lci �js and conditions in Exhibit 2, the General Provisions and IT= and (IndhWas) mum be hembed on OR,' fines tvlow, Addificmal pages w ciy be added as needW WINme am no excelminns, licase Agn m1mv AWRaled at flie, bown of We page, I a 0 rril 4, 1) c' S c I i p I u a�� au The abovic exceplOons (and any, addihonal pagcs idenidied) axe the ONLY exceptimis to the succincalions. General Pnwiskns W Mum and Conllknm & F0111 2. and sanmic ctmhmcl W �lns sAcitafion, I undersland 111,11 dw City, nlay not wcup m1dibnal cxccp6ons Inuducal a0cr filud �"ubalissilon of,thispropos"ll', SynMwe (Annpany Dwe No Exceptions are to to this solicitation or the General Provisions and,rcrins and, Cojuill"Ri-if.44n Exhibit 2. (AnImny Dme. Ril' 5X0,l' , (luliter I Services fin" the Oty ot, Denton lQgv IS (W 20 ERMBIT 3 (Ty of Fknwn UUT I'm Charter Tlamsporlafion Services f6T Ow Oly of p )eldon Al"'I'ACI]MENI'(.,'-SA,FE','I'N" RECORD QUES"HONNAIRE 'Me Cly of Demmi Wes to amil AsOf of the bendiis of ScOW 252.G435 of the Lima! Governmerwi ('odc, and c-onsider the Wbq reawds of powmil conWwW pr-hr lo a"ard of Chy conwacts. Pwsumu Ici Suctimi 252A435 cW the Lwal Govermnero ('ode, We (Ty oT Demm Ims mkqwd dw !Wlowhig maAwn denniHnn W crileiria f6r aecurately dcrennin4ig the sal oy record of a resporldcllp prior to awarding (Jty contmels The dcfiniOon and c6lelra for (je er�rjinhg Ow Wy nxw,kl ot`,i wSponderit lor this corls4lena6on Shall bw The Uq of Denton shall consider the safvfy record of Me rVipolulent in determining the respoinihiH"i thereof. Ile Chy nul consider any incidence involving worker safe()/ or safely of the citizens of the City ()f J)c^mon, he it rvbWd m- caused by emironmental, rnechanicnfl, operalional, supemision or any other immse or Floor. Specdkaly. Mew CVy amy emnMeP among WboAllings: (W"WN Un or W oWem carer d #, be (kwpwbml SWBY ami HmUh 14,eview Corniniss kin (OSHRQ against die respondent Rn G"dorm of OMIA regulations, within 1he past dirce (3) Years b (J wkrns (as (Jefined b0ow) from an F"rrvironinenO Prow•kon Agcncy (as deNwd beWw) For WIMS, Win the FiasInve (5) yeam. linviromneW PnWmi Agmckws include, W am nor imusud" linked W, Cc US. Anny Oups of Engkicas (US, U)EY the W.S.S. Fish and Wfldlifi: Scrm�ice (LISFAVS), the 100(mmnewal Pyournio" Agency (F11A), tame 1exas Conlnlisanon N� 110onmetital Qtwhly (1VFQY dw "rexas Natt"al Resotirce UonservAon Urnmilshn mmcc) (predecessal, 1cm tp w 1'cF,Q), Ow 1'exas IL eparkment of iie,,,itat (,i,imn, ma 'Wear/ Parks mW Wddhfie F)ePailluent (ITWD), dic Structum! PeA OnMO 13mad (SPCBI iWewks a b•d Wwonments responsihih." lor enWhy cmdomwental j,'rroiec6on or worker saf�,iy related kaws or regrih,16ons, antj sinnhrr regulatory agcmrcws of othet, states of the United Suacs, Chavlocs hiduchr ricnicus of WWW, nwims of enSmemerd, suspenskmWevocations tW male or Wderd Hcenses or w9ismaho1w, n1ws amosed, pmdhg crirnhufl coniphakils, iMhOWIC"In or convictions, a&WnkwmNv Werm dwA Wmy lbul onkrc andjudichl HnaUidgawnw, 0mvictions of a crhAnW ohhwe wiihin fine past ten ( W 0) ycnns, M66 resulted in boddy hami or dadh, Any i0a safOy rcWwd nutter decirrod by Ow (11 (Mumil to he MM&W ill ddmnKWg the irsponsilAlity of the respondent aund his or her ability to perfimn the. services or goods reqtiire(l by die solicivation docunients irru a enviromumv, both i'm die workers wKI cpther- employees oral respondent and the cikzens of the C. ly cd'Derkin, In m (lei w oblain propci, WArnm6on floni res,n&w so Am (1, of Dmkirr nmy umider dw Why rccolds offuitenkal emwows QT w awmdhg Ws ori Uhy (smoram (11 of Denwn requires 11tal iespont-knits answer dw AAWwkg W"w (3) qwNHons and sWmnk Unn mith Wr WnWons� R FT 5803, Services fbrdle Oty+ (if DVIROB t lago t6 o V 2 0 ERMBIT 3 (Ty u Demon R Rn C'hada p wupw1wOn Wkes Mr de 0, (WDemon Q!1-1 U Has Te ropmWenh oT dw Hnm coMoaMorq pmuemQ or inwhothn mpwsmwed by the rmpondeta, or anyorle acthq;, for such firm, corpor",oion, partjre�'shq) or Wilmion, mccived chwhns R WNW, of OSHA wthin Ow pram Inv (P ymn-s? YES NO Irthe respondent has hxhaoml YEN Aw qutsion nunAwr one above, tire respondera ma provkfe to Cky oft)cwon, wiah its suNmWon, Me RAWNT hri1wwrathm Witt msped H) each sudi Wuafiorra Date of, offien'sc, Ilow,rrkon or emblikhmm impeamb category ol, offa rrse, final dkPosikon of offense, iC any,,,md picn.ally assessed, Q jj EST I ON T NV 0 ANAMNA Ws Me rujondera. ox We hrm, co•onakno pannomh§. (a insMudon repicsctited by tht: ri.spondent, or impme aahg Wr such fArn, corporadwn patuenhip or insdukon, rcceived, citations 16r violations of cnvironirierrial proWabn laws or wguwootm, of any kind or lyjv, wtflitir ffie pasl five years? 0(,,,ttions, rn,,Aude nolice of6oh6w; mWe or milbmemew, suWenskmWevockons (W sUh: or Ndem! hcerues, or regis"fions, fines assessed, 1,)ending ciinrirra cornj)Larnts, rndictrncrtts, 0] c0n%lic6ons, administrative orders, draft cwdets, final orkicrs, and jwficirad fim'd YES NO - - --------- - If Me reqwondog has WNW YES h;)"fwm% nawkw1wo above, the irspondent must provide to Chy cd'Denton, Nvah its subrnission, dw Wwkg &&wnwinn wHh wsNd to mwh wtwh WWWOW We or o0brae (w (wennence. Knkon, wlwrk., offi.nise wcurred, type ofm&nse. final Wposhion of oticnse d',,,n,iy,and p-•nahy assessed. !LL LE,5'fl () N 11as the msymdmu oc the nsaw coMomdw; pannemhy, or WRiftion represenwd by rcsporideiw, (Jur arryorte achng Ibi- SuCh IHT11, corporation, parwership, ot InsfiWfion, ever fawn Convicted, within (lw parwro U. 6) yeows, of a criminal =we whkT roWwd inWma budit Alm, or V death? No S If Ac reWondeta has infewed YES Aw qwwki munber three aWvq dw responduo nwa pmvMe W41y (WDemon. wkh ks sub-nkskm. Te Rdhwhg hAWMAnon with respecl to c,"wh such Convictiom pp aw of offense, location whvw Ldlinse twcumal, ype of oninw, fincil, dig,,)osition, of'off"ense, ffany, and pmmlq ameoed, UV 5803 - Charter Rangunlation Servies Wr the (it y or wimn PMW 17 nQ0 ERMBIT 3 0" of Lxnwn RHI foi� Chaim, Trarvq!wrtmi(m Servuccs fiv dw (,1Ly ot'Denton Al-FACIFNI E NT D-RETERE NCES pk•u Hm Im 0) Govenunem rebrems other Wan tile ( ity, of 0cliton, who can vetif'y the qwahty of'service ymn company proviks. Ile City p 1 cowmers ormawr ske and mnRAW"od U) hk mAMMHm". NAN0 [ OCAI K)N� . . . .. ...... ..... 1-1--- .......... (ON IVACI PFRKA.): . .............. ....... ......... .. . --- -- -------- R F F EX E N 0 N E, Q, C - -- - - - - -. ........... . ... .. .......... . . . . . ...... -- --- - ---- ..... .. .. . ....... . . . ............. . ...... ............ . .... . ................ . ....... . . . ..... ....... . . - ... ... -- ... . . ...... REFERENCE TWO (" � I NAN*� 1,0�( A . . .... .......... . . ....... ---------- -- . . . ................ SCOIT OF WORK . ............ .. . _ ...... . .. . — - -- - ---------- . ............. ... ..... 111.11— . ........ . .......... 1111.11-- CONTRACT REFERENCE THREE GOVIRNMENTWOMPANN" NAN* BWTACr PERMW AND TrA P,r . . . ............ . . .... . . .............. I F1 L111 IONt,, NUMBER: . .... ... . .... --- — ---------- ---- - - -------- SUOMI 01 IORK�, - ----- . . ........ . (UNTRACT PKRKX): RFP5803 (Tunw- I mnspumOon Semkxs Rw the (Vy of Den km Page 1 8 of 20 ERMUIT 3 (Ayoflkmon for ('harlm Fmnspoma On Smv Les Nr Me (Ay,Wnewon A'I"'F/,,tCliNtEN"['E-CONFI,ICI'(,',)l�'INI"F,IliKs!r (juits"nopNNAIRE -m.. --------- CONFLACI' OF ipq,rittttesrr (Itjics,fioPq?4;kittic . FORNI CKQ For vendor or reflects changes ninde to the law biy ILK 1491, 80th I (,,g., Ric, uhir Session . . ......... . .... .. ....... . . ............. g 116s quivsHunuSe is behig Mal in wconWe oth chVwr 176 or the LAW Gwe•nmima tide hy a jwmm idw Nm a to ditAined by Swion 176,0010 a) widh �� Voc;fl govenuilew'd emit"y and the picimn nwims tumej, Sectjt)mt 1760016(a) BY Ww TO qwmiomahv musl be Med viviih IN,, r"rw,tts offfic kwal govemnmu CnOty not We"Wn Ow Th hmmos Q Wr the date ihe person hammes awmv of kwIs dul MqAe Me swwnma lo he AINL Se Secdon 176AMM, PwA (Kywornm Ctxle S A Isrson wounks an Wkmc K Ow p-mm kwwwWy VOW , 'eCil AM t WW I mad (WyemnwW W An uMnw un&t Mk wabn k ci Ch,vo; C --- -------- kName U4 person uTo El (,h—(,c—k Rilis box -i—fy—o u fiflog an asp me to a fjptqj iipt flolm Are. I Ne hm, mv puif d,s Om[ you fik� arms "pittawd conqkwi,f ipu., )0""351,r "61h dii,: �Vpropm',fl wlm L,'iilcy Own ffie 7"' bu,,smerss day afttrr ow 2 . . . ...... ............. . . ... . . . --7E Naine offiDcA govimnowint unUvr wjM WWm OW h" an NnMiq mum Sil MISS infn5why, e �apav o9 ,011"kel N nk wnmd&w p wchWmig w&NMw A, M C & IM mus"is cmq&wd 61 wt:h oftk,-c daa0dd kvhm nm Ow fik:w bw; an ¢qnphsynwW m Whcr hu�oncss ck9fiwd l by 14 cuon w 7 001 C 1'a), I oca� G4'bvcrwnm9 Code /\Mfl.J iiddqjnnM pzqkv ; to Ibls Fmin CK) as, A dw kwo g"emnimn umca wMwd w 06 wichon mewmg 0: hkely m rixwyc inmahk Kvnw. uVor Omu hweamou unwaw. hum Tu 00 of Te No R & dw Ma MAW inshoumne PuNQ ur INQ to rmcw =Mdc twonw, wher Qan nve� nuww uricoim, firorn oi[, at mhc docal governmcw o ftpcet named m dwswcO(m /W) Ihc, wjblc mcome P, 110 aO,Cwvd fvon) phe hwi'd gowmwwwal cl'ady? vvs E-1111.11 M k fl[Te f'shn, of nip,, q0woiommiw cookled by a coqwim"m ow and wi bunwo mug ✓A r.Wo w whi, ow wM pmamwm WU, offiwer oi d"ciijor, or hoklsm owncm shq) oft 0 pt,irvuw q" "K"O Dustnfl-w ("'ach Ldfifi[Wwn m bwoncsr r+ Btrii<uwm,Mlmmdpr. . . . . ...... . ............. . ............. ..................... . ...... ----------- - - - ......... I Swe on (AMM I d Nwimo w ww"e. ------ ----- TT . .... . . . . ............. . - ------ ------- --- - 9yJT5803 Page d ^m oC 20 m. Q ERMBIT 3 Qy of Denum RFP An (Tiama llansMwatimi Scmiceg liar the (Ity of Deracin ATTACHNIENTF- A(','KNOM'tit,�,'D,(,,;ENI,EN"l' I U' ondersigned agrees 1hts suhn"ds�iiojj h,� comes Me pnMeoy ij§e Ch"A DerHm a0a Ow oMOW 0""Hig 'Hw umiciOgned uffirnis hl-,, has fiallihartzed hWsdf m9h Me Mwd%hon, dmwAp,xWWw aW odia &wni= Me kwM cmdOws Wu x0th Me WMt k uox puRmwdi WOW hitnwhn'die condihons of"kklivery, swrwe ornmwHaas saw epipmw and aH nMer ritattem drat W01 he tvcp6ied kir 0ie work b0bre snhmltfing as wsr)wlse 'I lie tmdersigilict] agrees, 0, this ma)miss� ii is accepted, to Knukh any mid ajlN ktpon %YfikAr I'mcnem s a on: offered, it tine, phce(s) arW qmn or mmn mW cmWOmis umminal in the speWcaliow Tw paWd leer mxqm Tis momk6w %vM be I N! CaUhlar (LtYS Ifffless a dift6cm period is imted, T9 umWyned a Mmm OW tky me dWy moWnzed to emcme WE cmWun Mat this nMmkhm Irm no ban pMmmd h; contokm W, any, odwr wspondou ru)r atty crriooyce or the (jq; of lWon, and that khe Contents (")f thissmbalission have Im, been ctmnnumiwal to any t9her rnpmWom ."o mw employee or Me ny or Demmi pan-A to Me aaclmwe of this SLIII)Irlassioiil' VxYI)ondem hin'(-Arf assigns to the Chy any W aryl Whim lire Over(Imrge"s asso6a(eid nvitlu tp6,s contnact which ahse mider the andtnw laws tirdw Wed SUM 15 USCA Secliml p et and which arise kinder the eared rust laws offlic State of" exam'Tex. Buw& c(im, Code, Scomn, 15,0 1, et wt ap. 'nw mWoOpwd a0han OW they We mad and do undamaW Ow qWdHcWkMS, all cKNU and a achmenis Cmitaked In this soficiiafion package, Hic mildersigned aluces Ifilat the soficiia6on package immicd mi Me wchshe are the oHldal specHicalAns Mid ShaH Wt altar the euvimnyu copy orow swcowns wwwr m "m sheo (Fxhibit 1), withow clealrly idenfifying chariges, 11, We&Vwj umh,mminis Wy uAl be remmmHe W wwn"Hing the City 0p Dera"'I PtIrcha'sing Websile ac 191 us crimnir, they have douidnaded arrd sipud all Wkndnm(s) reqt,6red tot, s111bn'iYm"I W101 their reiponsc, I cc,q out I have umdc sm MURd nhswpvwnWIkmN in us suNukdon, nor have [ withheld in Iny simmmnis mid amwos U"PeWmIS I am Ow"IC Oilt thc kirc)rnlaoolt given by nic in Ihis m1blinssion"will Im invesUgated, %V t111 tily f"I I patinssion, and that any innusrcpnreserantatrontna (,)I' Offlissic"Is Tilay CausQ, inn sn'brillssion to hC rejecte(I Acknowledpe reccipt to the 'sofictuaOotr Addca0tgm No I Dated Recenwd Addellidinn No '2 Dated ... Received A&Wum No 3 Diflvd WOW NANIVAND ADDRESS OF (AMIPANY ILI () /? j0h. J� t", z 'lel No� C;?j 2 l" all sm:'; Chartc"W 11"'nisportation SeTvkcc�'; tor deaf ( , ity or Denion INge 20 tW 20 signature Date, Nanic . ...... L-J, all. Tilde U Fax No l" all sm:'; Chartc"W 11"'nisportation SeTvkcc�'; tor deaf ( , ity or Denion INge 20 tW 20 ERMBI F 3 RFP 5803 - Pricing Sheet for Charter Transportation Services for the City of Denton Exhibit 1 Respondent's Business Name Cowtown Bus Charters, Inc. Principal Place of Business Ft. Worth, TX ITEM uOM Est Hr Min. Type of Service Requested Base Price for Est Minimum Hrs Total for Est Hr and Base Price 1. MOTOR COACH - BUS SIZES (12 - 14 persons per bus) LS 1 4 1 MOTOR COACH $73.75 $295.00 2. MOTOR COACH - BUS SIZES (21 - 39 persons per bus) LS 4 MOTOR COACH $86.90 $347.60 3. MOTOR COACH - BUS SIZES (30 - 39 persons per bus) MILE 1 5 1 MOTOR COACH $105.60 $528.00 4. MOTOR COACH - BUS SIZES (40 - 49 persons per bus) MILE 5 MOTOR COACH $118.80 $594.00 5. MOTOR COACH - BUS SIZES (50 - 57 persons per bus) MILE 5 MOTOR COACH $121.00 $605.00 15/514 945 AM ERMBIT 3 . ", . ........ � 4D rmu,-, ImPvm)ryy'yy) AC' , C R E3, 0 CERTIFIGATE OF IJABn-i-ry INSURANCE ------ 051G:4/2015 FIE A,$ A MA77EIR OF INIFORMArION ONLY AND CONFERS CERTIFiCATE IDOES NOT AFFIRMA111VELY OR NEGATIVELYAMEPID, FXTEN11) OR ALTEIRINIE MP ERAGIE AFFORDED BY THE P101JC3E$ BEIA')W 11 CS CER71FICArE OF $14SURANGE DOES NOT CONSTI'Tu'rE A IttPPPWTI ACr BEIMEEN 1 lI4,E bSSLHNG WSURER(S), AUTHORIZED RE PAW E' PIP N"FATIVE OR PRODUCER, AND THE cEiR'nPICATE 110u)ER uj ct W the If th�P corfificate fitAder lie, an ADDirlIONAL WSUIRED, the pir.aJucy(oes� must be endorsed. if SUBIROGATION M WAIVED, Su ' 0 terims aind condk6ons of tj,u u pohc;y, certa4i poncies may reqit4re arr erwdorserrmnl, A staternent on itjjus cmrifPicat o es riot confeir tight s l tim, ceNjfflcate hWdev I''' ¢n BRENDA Pm�a 9, 12) 1" 9 31030 NORTHI AMEMCAN COA,CH RIS$( MGT, INC Eljd) 80� 0169,4318 a - PO BOX 414 BF4,ENDA@NAGRM,C0M LOMEIA, TEXAS 76853 W011('1NIAL C J PIRSTATE P14SLlRANCE ti (30W,�"&Ajt,j BUS �,IARII'FIIRS, lNC, WS,,PRFR 5504 l-Cj4,ES"r WLI. DRIVE q 01[,R,T WOR744, fEXAS 76119 r", WICATIE 114UMBER '�Tf — 'T "F" — – –FiFRI11013 75,`77rFsT7iU,4 HA\0.,`, BEEN 4 35 "WOCH 1HZ I'E"PM (M CON04110N OF AN'y (X)NIRACI C)R 0-HER WIFH RESIPECI' 10 W)MTHS"TANDING ANY REQORPAMIH, Affr)W'IED ��y 7'�+ P()�,0(,JES ()F,,`,,CRrE1H`D HERErN IS SUIBJEC'�' "It) ALL THE MRIMS, CL'HIMFK�'A�f, MAY �'�tiLI BE 6SWED OR MA y PCMAN 1" P()U(�3ES NNkStMANCF LflhAll'r S 511 IM"N SN OWN' MAY 11 rAVIE W,,,EN F`k EPUCIA) BY FWD ( I-APAS X (,3 LKMDWS AM) N UT'KY'6 W� SUCH P(H, NCY E F F Fhr)1Lm;1Y Exy (�V N 1, *413 F R, jWAbDNYrVY), �PIAVDWYYYY), 5,000,000 r A GENERAL LIAKWIV NA[IAAC& 1�6 Wfrra �m,�vvwl�wmco� X I w"d k4gr""', 5,000 X YFIPII,�96410,116 05ffl 11,15 6 PUHS'A.INAL& ASYV INJUR"Y 5,00f,),000 I Wijm),Oou AG(", 15,000,000 (,41� V4 Ar L�R�GATT'i]W APP1q',SVTHr X u'al 01,10ANOWD $ P,100MORK f UABft Iy u() ,01a y INd TOWY 44 prmm,! YIDFs11 119840,16 X Ac'( ri o AI S tJWNfD S 11` YfWULUU, 05/01 W 15 0 51(0 11 F6, HODRYH,LJHP,w All � J1 ()s pW Ici c, CATY bfi,MAcf� ro 5,000,000 A V jMfAIPICU A, �JAB x 5,000=0 YP;. XI I �9840-06 0510 115 051(f) I I (-il A("C11PEGA5t,, EXCf-.SS UAD y11Ar,A FZU r hrlf WIN S x We 5TA"Ti I, CY1 I+ WORKIER� OrWPENSAVON I la(K), 000 AND HW'PL0YERS'1UAfPUVf N OAICII'�9841-14 05/01 /'15 05/101,1r 6 x S " MIA 1,0011,000 tNPJ A 11"Wory 4� HH� l�',, , PCAJ V L RX 1,000,000 �CRI[p (5, 1,`)P� RA I ON4S D11 DIJ C I'll B L E: 1 0,0f 0 YPP11 19840,16 05/01115 0 5/0 /16 11,C)L L'lSlION I SPEC PERM 5 PHYSCAL DAMAGE S (At�ach ACOKO �W, A&ANOTW OfIMM10, U� WrIltJ, 01 N TO T H F'� TERMS ANA CONDff�ONIS 0 F 'I � R,"- POILIC"Y (�ES) GE l K,,AJE HOl, DER 6 ADDED ASAN ADDlITIOP"JAL �NISLJR�ED PIURSIIJANI �4,EFERENCEE) ABOVE RT1Fff,'A1'E WI10 GFI'y Of", B T [,`�V�Al'i S1 REE [16 -+41-(')N, TE)(AS 76209 ACORD 25 (201 OMS) AINCELLAT10N Sr-00ULID ANY OF THE ABOVE DESCROEID POUCIES BE CPICHAED BEFORE THE EXPMAIMN DA11- THEREOF, riouCE Wfl-L HE DEUVERU) 04 A(;(.'0RDAN1rE'MTH THE POUCY PROVMON& AVT v,pWED Rlr-, PIRESF N TA 11,0v i t J()88,2010 ACORD Tlhk� ACORID rume and 1DgO anp mfosteired mayks (rf ACORD 104, Aft 6ghts reserved, City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -714, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Community Improvement Services CM/ ACM: John Cabrales, Jr. Date: August 18, 2015 SUBJECT Consider adoption of an ordinance providing authorization for and ratification of a Landscape Maintenance Agreement with the Texas Department of Transportation for the purpose of providing all required maintenance of certain landscape improvements located within the right of way of state highway routes; and, providing an effective date. BACKGROUND As part of the class commitment for The Leadership Excellence Enhancement Program (LEEP), participants were required to develop a project that provided alternative or innovative ways to solve a challenge facing the City. The purpose of the Destination Denton? Project was to provide viable solutions for creating and maintaining clean and attractive entryways and commercial corridors in the City of Denton. To that end, the Destination Denton? work group partnered with the Texas Department of Transportation (TxDOT) to initiate the Green Ribbon Landscape Improvement Program. Green Ribbon is a program established by the State Legislature in 1999 to allocate funding for landscaping and other enhancement activities in TxDOT districts that have air quality non - attainment and near non - attainment counties. The program goal is to establish trees and plants in state highway rights -of -way to help mitigate the effects of air pollution. TxDOT provided designs to the City in early June 2015 to upgrade the landscaping on the Dallas Drive, Fort Worth Drive, and Teasley Lane medians as well as the North Slope in the parkway on University Drive near Bell Avenue. The Landscape Maintenance Agreement (LMA) containing these plans required the signature of the City Manager. George Campbell signed the agreement on June 16, 2015. The LMA affirms that TxDOT will provide funding for all landscape materials including trees, plants, irrigation, and concrete mow strips, and one (1) year of maintenance for the landscaped areas after installation. After one year of TxDOT maintenance, the City resumes all maintenance responsibilities. RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED SCHEDULE OF PROJECT City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -714, Version: 1 The Texas Department of Transportation will begin landscape installation on these four roadways in late fall 2015 to early winter 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Initial project information was provided in an Informal Staff Report dated November 20, 2014. Additional information was provided in the June 9, 2015, City Council Meeting, Work Session as part of the Destination Denton? Project presentation. FISCAL INFORMATION TxDOT's design, installation and one year of maintenance is provided to the City of Denton, without cost. EXHIBITS Ordinance Respectfully submitted: John Cabrales Assistant City Manager Prepared by: Lancine Bentley Community Improvement Services Manager City of Denton Page 2 of 2 Printed on 8/13/2015 AN ORDINANCE PROVIDING AUTHORIZATION FOR AND RATIFICATION OF A LANDSCAPE MAINTENANCE AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION FOR THE PURPOSE OF PROVIDING ALL REQUIRED MAINTENANCE OF CERTAIN LANDSCAPE IMPROVEMENTS LOCATED WITHIN THE RIGHT OF WAY OF STATE HIGHWAY ROUTES; AND, PROVIDING AN EFFECTIVE DATE. THE CITY COUNCIL OF THE CITY OF DENTON ORDAINS: SECTION 1. The City Council finds that: A. The most recent Leadership Excellence Enhancement Program (LEEP) participants: i. were required to develop a project that provided alternative or innovative ways to solve a challenge facing the City; ii. initiated the "Destination Denton" project to provide viable solutions for creating and maintaining clean and attractive entryways and commercial corridors in the City of Denton. iii. partnered with the Texas Department of Transportation ( TXDOT) to initiate the Green Ribbon Landscape Improvement Program in the City. B. The Green Ribbon is a program established by the Texas state legislature in 1999 to allocate funding for landscaping and other enhancement activities in TXDOT districts that have air quality non - attainment and near non - attainment counties, of which Denton County is one, with the program goal to establish trees and plants in state highway rights -of -way to help mitigate the effects of air pollution. C. TXDOT provided designs to the City in early June 2015 to upgrade the landscaping on the Dallas Drive, Fort Worth Drive, and Teasley Lane medians as well as the north slope in the parkway on University Drive near Bell Avenue. The Landscape Maintenance Agreement (LMA) containing these plans required the signature of the City Manager before City Council approval could be obtained. City Manager George Campbell signed the agreement on*June 16, 2015. D. The LMA affirms that TXDOT will provide funding for all landscape materials including trees, plants, irrigation, and concrete mow strips, and one (1) year of maintenance for the landscaped areas after installation. After one year of TXDOT maintenance, the City assumes all maintenance responsibilities and the financial obligation attendant to the maintenance. SECTION 2. The City Council of the City of Denton authorizes and ratifies the Landscape Maintenance Agreement between the City of Denton and the Texas Department of Transportation for the purposes of landscape maintenance in state highway rights-of-way. The City Manager, or his designee, is authorized to execute this Landscape Maintenance Agreement on behalf of the City. SECTION 3. The City Council does approve, ratify, affirm and accept the action taken by the City Manager on June 16, 2015 in executing the Landscape Maintenance Agreement, attached as Exhibit "A," on behalf' of the City. This ratification by City Council does in all aspects affirm, approve and confirm the execution of Landscape Maintenance Agreement as if it were by the adoption of this Ordinance on that date. SECTION 4. To the extent any other Ordinance or Resolution is inconsistent with the provisions herein it is repealed and superseded by the provisions of this Ordinance. SECTION 5. This ordinance shall take effect from and after its adoption and relate back and give full effect and lawful authority to the action of the City Manager executing the Landscape Maintenance Agreement signed on June 16, 2015. PASSED AND APPROVED this the — day of 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: June 24, 2015 CSJ: 0081-04-040, etc. Various Locations Denton County Lancine Bentley Community Improvement Services Manager City of Denton 215 East McKinney Denton, TX 76201 Dear Ms. Bentley: Please find attached, one (1) original fully executed Landscape Maintenance Agreement for the subject project. If you have any questions regarding the Agreement, please contact Angela Green at 214-320-4432. If you have any questions regarding the project, please contact Stephen Copley, RLA at 214-320-6205. Sincerely, Andrew R. Oberlander, P.E. District Transportation Operations Engineer Attachment OUR GOALS MAINTAIN A SAFE SYSTEM - ADDRESS CONGESTION - CONNECT TEXAS COMMUNITIES - BEST IN CLASS STATE AGENCY An Equal Opportunity Employer au LANDSCAPE MAINTENANCE AGREEMENT gB'14onnWfG «JmFfiWu Form 2043 (Rev. 04/12) Page 1 of 3 THE STATE OF TEXAS THE COUNTY OF TRAVIS This AGREEMENT made this 4th day of ___ June 2015 , by and between the Texas Department of Transportation, hereinafter referred to as the "State," and the City of Denton t Denton myy County, Texas, acting by and through its duly authorized officers, hereinafter called the "City ". WITNESSETH WHEREAS, Chapter 311 of the Transportation Code gives the City exclusive dominion, control, and jurisdiction over and under the public streets within its corporate limits and authorizes the City to enter into agreements with the State to fix responsibilities for maintenance, control, supervision, and regulation of State highways within and through its corporate limits; and WHEREAS, Section 221.002 of the Transportation Code authorizes the State, at its discretion, to enter into agreements with cities to fix responsibilities for maintenance, control, supervision, and regulation of State highways within and through the corporate limits of such cities; and WHEREAS, the State and the City have entered into a Municipal Maintenance Agreement dated June 4, 2015 the provisions of which are incorporated herein by reference, and wherein the City has agreed to retain all functions and responsibilities for maintenance and operations which are not specifically described as the responsibility of the department; and WHEREAS, the State has existing and proposed landscape improvements, such as, but not limited to, the installation of tree, shrub, and turf plantings, irrigation systems, and other aesthetic elements for areas within the right of way of state highway routes within the City as shown on Attachment "A "; and WHEREAS, the State will provide such landscape improvements, provided that the City agrees to be responsible for all required maintenance of the landscape improvements. Form 2043 (Rev. 04/12) Page 2 of 3 AGREEMENT NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto to be by them respectively kept and performed, it is agreed as follows: Contract Period This Agreement becomes effective upon the date of final execution by the State, and shall remain in effect until terminated or modified as hereinafter provided. Coverage This agreement prescribes the responsibilities of the State and the City relating to the installation and maintenance of landscape elements on non - controlled access state highways, as defined in the Municipal Maintenance Agreement, and described and graphically shown as "State Maintained and Operated" in that agreement. Amendment The parties agree that this agreement may be amended. Such amendments, to be effective, must be in writing and signed by both parties. State's Responsibilities The State shall install landscape elements including but not limited to trees, shrubs, grasses, sidewalks, irrigation systems, and hardscape features through its employees or duly appointed agents. City's Responsibilities The City may install landscape elements including but not limited to trees, shrubs, grasses, sidewalks, irrigation systems, and hardscape features through its employees or duly appointed agents. Any installations shall be performed in accordance with Texas Department of Transportation specifications and standards, and must be approved by the State in writing prior to any work being performed. Form 2043 (Rev. 04/12) Page 3 of 3 The City shall maintain all landscape elements within the limits of the right of way including all median and island areas but excluding paved areas intended for vehicular travel. Landscape maintenance shall include but not be limited to plant maintenance, plant replacement, mowing and trimming, hardscape element maintenance, and irrigation system operation and maintenance. All landscape elements must be maintained in a functional and aesthetically pleasing condition. TER.M,I.NATION, It is understood and agreed between the parties hereto that should either party fail to properly fulfill its obligations as herein outlined, the other party may terminate this agreement upon thirty days written notice. Additionally, this agreement may be terminated by mutual agreement and consent of both parties. Should the City terminate this agreement, as prescribed here above, the City shall, at the option of the State, reimburse any reasonable costs incurred by the State. 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NIT !i Q r a t g p y '"" I 2 If j JG on; q; j; p" 1 A sit its a .01; 'ply. njQ1 it lot I A HO A h I a I if &A "M ISO A 0 i A IN fy t Pill, E 41 fit ON I; vul "N; pit, ilks sit it Q, >; a it JOR it, law I hr 1 IN, HIM m: it 1A l 1 At,la,dqmeal A— City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -733, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services CM/ ACM: Jon Fortune Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of Ordinances to revise the school safety speed zones and times for various schools; to add a school safety speed zone for Pecan Creek Elementary; providing a penalty of a fine not to exceed two hundred dollars ($200.00); providing a severability clause; providing for publication; and declaring an effective date. The Traffic Safety Commission recommends approval (5 -0). BACKGROUND Pecan Creek Elementary School Zone Addition:The Villages of Carmel subdivision continues to develop north of Pockrus Page Road, south of Edwards Road and approximately �/2 mile west of Swisher Road and Pecan Creek Elementary School. Currently, there is a sidewalk along the south side of Pockrus Page Road from the area of recent development, which provides a walkway for children to Pecan Creek Elementary School. However, it will be several years before the Villages of Carmel development progresses eastward along the north side of Pockrus Page to its most easterly extent (the Post Oak Drive intersection) and completes its sidewalk along the north side of Pockrus Page. In the meantime, children living on the north side of Pockrus Page do not have a safe area to cross the street to access the existing sidewalk on the south side when walking to school. Parents in the area recently brought this issue to the attention of Council Members and City staff. City staff has reviewed the situation and determined the most effective way to address this safety issue at this time is to extend the existing sidewalk on the north side of Pockrus Page a short distance and install a school zone crosswalk on Pockrus Page on the east side of Waterlily Way. The school zone would need to be supplemented with applicable school signs, flashing beacons and a crossing guard. After crossing Pockrus Page Road in the proposed crosswalk, children could then continue eastward on the sidewalk on the southerly side of Pockrus Page to the back entrance of the school. Staff feels this is the best location for a pedestrian crossing at this time, because: 0 Waterlily Way, being a "T" intersection at Pockrus Page Road, has lower traffic volumes than Pockrus Page Road and Camino Real Trail (a 4- legged intersection with a collector street serving as one of the main accesses to the Pecan Creek area from Mayhill Road via Edwards Road); City of Denton Page 1 of 3 Printed on 8/13/2015 File M ID 15 -733, Version: 1 • There is a slight vertical curve crest to the west of Camino Real Trail that somewhat restricts a driver's sight distance of a pedestrian crossing at Camino Real Trail; this sight obstruction is not present for Waterlily Way; • There would only be right turns from Waterlily Way onto Pockrus Page Road that would be in conflict with the pedestrian crossing, as opposed to the 4- legged intersection at Camino Real Trail, which would also have left turns from Camino Real in conflict with the pedestrian crossing; and • Waterlily Way is the closest cross - street to the easterly end of the current development and sidewalk on the north side of Pockrus Page (children would not first be traveling away from school to cross the street). Staff also reviewed the possibility of extending the sidewalk along the north side of Pockrus Page to the Post Oak Drive intersection and installing the crosswalk at that location. Discussions with the Villages of Carmel developer indicated they were willing to reimburse the City for this sidewalk construction. However, an examination of this option revealed a need for some fairly heavy tree clearing and earthwork in an area with an existing stormwater facility and a gas line crossing. It was felt that installation of the sidewalk along the north side of Pockrus Page with the development construction would be more orderly and avoid future reconstruction of any sidewalk constructed in this area at this time. Adding the sidewalk and the guarded school crossing may also have the added benefit of encouraging parents to allow their children to walk to school, reducing school vehicle trips and resulting in less vehicle congestion at the school and possibly less vehicle /pedestrian conflicts at the proposed marked school crosswalk. Other Proposed Changes in School Zones: The ordinance also adjusts the times for all identified school zones in the City to fit current school times, adjusts school zones along TxDOT roadways from "identified times" to "when flashing," at the request of TxDOT, and adjusts the limits of two school zones for the reasons provided below. • Robert E. Lee Elementary School - School Zone adjusted to include a recent extension of Paisley Street to the east of the school site. • Woodrow Wilson Elementary School - School zone extended for a short distance west along Windsor to include an existing crosswalk with Crossing Guard. School zone area added on Glenwood Lane, from north of Emerson Lane to south of Emerson, to cover an existing crosswalk. OPTIONS 1. Approve the proposed ordinance and direct staff to proceed with installing the Pecan Creek Elementary School Zone, crosswalk and associated appurtenances and make appropriate time and location adjustments in existing school zones, as described herein. 2. Approve the proposed ordinance and direct staff to proceed with installing the Pecan Creek Elementary School Zone, crosswalk and associated appurtenances and make appropriate time and location adjustments in existing school zones, in a different manner. 3. Do not approve the proposed ordinance and provide staff with further direction. RECOMMENDATION Approve the proposed ordinance and direct staff to proceed with installing the Pecan Creek Elementary School Zone, crosswalk and associated appurtenances and make appropriate time and location adjustments in existing school zones, as described herein. City of Denton Page 2 of 3 Printed on 8/13/2015 File #: ID 15 -733, Version: 1 ESTIMATED SCHEDULE OF PROJECT Staff has taken delivery of the required equipment and anticipates the work for the Pecan Creek Elementary School Zone and crossing would be completed prior to the opening of school on August 24, 2015. The other school zone adjustments are anticipated to be completed within a month of approval. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Traffic Safety Commission recommended staff's recommendation to the Council on a 6 - 0 vote, at its August 3, 2015 meeting. FISCAL INFORMATION The Pecan Creek Elementary School Zone crosswalk, associated sidewalk, equipment, signage and markings are estimated to cost approximately $22,000; the additional crosswalk guard will cost approximately $6,000 per year. Both will be funded from currently appropriated funding. EXHIBIT Exhibit 1- Project Area Map Exhibit 2- Proposed Ordinance Respectfully submitted: John T. Davis, PE Director of Engineering Services 940 - 349 -7135 City of Denton Page 3 of 3 Printed on 8/13/2015 cn — 0 (n , C6 0 Fn p o 0- Z co I 0 0 X w fill IL ... ..... . . . .. 0 . . . ......... .. .. .. .. 0 uj E p 15 Q E 0 PU meo lsod Exhibit A Q> U) U) 0 0� C) LU (D U) D C) 0 0. 71L E[ I,( lull P.s cc C). U) E 2 (D C6 '0 . ................ ...... .. co U) -a u) J L.J J J .:�. �( �: �! .�4. Aem Appl.m .. ...... .. .. .. .. .... ... .......... . . . . ... 7� D "I .. . . .. . . . ..... Exhibit A Q> U) U) 0 0� C) LU (D U) D C) 0 0. SALegal\Our Documents \Ordinances \I5 \SchoolZone (I0).doc ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 18 OF THE CODE OF ORDINANCES TO REVISE THE SCHOOL SAFETY SPEED ZONES AND TIMES FOR VARIOUS SCHOOLS; TO ADD A SCHOOL SAFETY SPEED ZONE FOR PECAN CREEK ELEMENTARY; PROVIDING A PENALTY OF A FINE NOT TO EXCEED TWO HUNDRED DOLLARS ($200.00); PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR PUBLICATION; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is in the interest of public safety to move the elementary schools' morning school safety speed zones from 7:30- 8:30 a.m. to 7:00 -8:00 a.m.; and WHEREAS, it is in the interest of public safety to move the middle schools' morning school safety speed zones from 8:00 -9:00 a.m. to 7:30 -8:30 a.m.; and WHEREAS, it is in the interest of public safety to move the high schools' afternoon school safety speed zones from 3:30 -4:30 p.m. to 4:00 -5:00 p.m.; and WHEREAS, it is in the interest of public safety to establish that the school zones on roadways controlled by the Texas Department of Transportation, including the school zones for Sam Houston Elementary, Ryan High School, Guyer High School and Selwyn School shall be in effect when the school zone lights are flashing; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by changing portions of Section 18 -210 through Section 18 -214 and these sections shall now read as follows: Sec. 18 -210. Twenty mile - per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A., Transportation Code § 545.357, the prima facie speed limit of twenty (20) miles per hour for vehicles is hereby determined and declared to be a prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following described school zones. (a) The time periods for the reduced speeds for the school zones described below shall be from 7:00 a.m. until 8:00 a.m. and from 2:30 p.m. until 3:30 p.m. on school days. The location of school zones described below shall be as follows to- wit: (1) Borman Elementary School. Both directions of Parvin Street beginning fifty (50) feet east of where Parvin Street intersects the center line of McCormick Street to one S:ALegal\Our Documents \Ordinances \15 \SchoolZone (10).doc hundred (100) feet east of where Parvin Street intersects the center line of Mercedes Street.2) (2) Newton Rayzor Elementary School. Both directions of Malone Street beginning fifty (50) feet north of where Malone Street intersects the center line of Cordell Street to one hundred (100) feet north of where Malone Street intersects the center line of Emery Street. (3) Ginnings Elementary School. Both directions of Stuart Road beginning two hundred fifty (250) feet north of where Stuart Road intersects the center line of Imperial Drive to one hundred seventy -five (175) feet north of where Stuart Road intersects the center line of Sun Valley Street. Both directions of Sun Valley Drive from its intersections with Stuart Road to two hundred (200) feet east of where Sun Valley Drive intersects the center line of Yellowstone Place. Both directions of Yellowstone Place beginning three hundred (300) feet north of where Yellowstone Place intersects the center line of Imperial Drive to the intersection of Sun Valley Drive and Yellowstone Place. (4) Woodrow Wilson Elementary School. Both directions of Windsor Drive beginning one hundred fifty (150) feet west of the westerly right -of -way (ROW) line of Longfellow Lane to two hundred seventy -five (275) feet east of where Windsor Drive intersects the center line of Hanover Drive. Both directions of Hanover Drive from its intersection with Windsor Drive to four hundred fifty (450) feet north -west of where Hanover Drive intersects the center line of Rockwood Lane. Both directions of Emerson Lane beginning one hundred fifty (150) feet east of where Emerson Lane intersects the center line of Glenwood Lane to three hundred -fifty (350) feet west of where Emerson Lane intersects the center line of Rockwood Lane. Both directions of Glenwood Lane beginning one hundred fifty (150) feet north of the northerly right -of -way (ROW) line of Emerson Lane to one hundred fifty (150) feet south of the southerly right -of -way (ROW) line of Emerson Lane. Page 2of8 SALegal \Our Documents \0rdinances \1 S \SchoolZ,one (I0).doc (5) Hodge Elementary School. Both directions of Grant Parkway beginning three hundred eighty (380) feet northeast of where Grant Parkway intersects the center line of Deerwood Parkway to the intersection of Farris Road and Grant Parkway. Both directions of Farris Road from its intersection with Silverdome Road to two hundred (200) feet north of where Farris Road intersects the center line of Grant Parkway. (6) Robert E. Lee Elementary School. Both directions of Paisley Street beginning two hundred (200) feet west of the westerly right -of -way (ROW) line of Mack Drive to one hundred (100) feet east of the easterly property line of Robert E. Lee Elementary school. Both directions of Mack Drive from its intersection with Double Oak Street to the intersection of Paisley Street and Mack Drive. (7) McNair Elementary. Both directions of Hickory Creek Road beginning seven hundred sixty - five (765) feet west of where Hickory Creek Road intersects the center line of Montecito Drive to four hundred thirty (430) feet east of where Hickory Creek Road intersects the center line of Montecito Drive. Both directions of Montecito Drive from its intersection with Hickory Creek Road south for six hundred eighty -two (682) feet. (8) Evers Elementary. Both directions of Evers Parkway beginning three hundred five (305) feet south of where Evers Parkway intersects the center line of Gardenview Street to fifty (50) feet south of where Evers Parkway intersects the center line of Robbie -O Street. Both directions of Cobblestone Row from its intersection with Evers Parkway to one hundred seventy (170) feet east of where Cobblestone Row intersections the center line of Ashcroft Lane. (9) Fred Moore Center. Both directions of Mill Street beginning one hundred fifty (150) feet west of where Mill Street intersects the center line of Cross Timber Street to one hundred (100) feet west of where Mill Street intersects the center line of Wye Street. Both directions of Wye Street beginning one hundred fifty (150) feet west Page 3 of 8 S:ALegal \Our Documents \Ordinances \1 S \SchoolZone (10).doc of where Wye Street intersects the center line of Cross Timber Street to the intersection of Mill Street and Wye Street. Both directions of Cross Timber Street from its intersection with Wye Street to the intersection of Mill Street and Cross Timber Street. (10) Tomas Rivera Elementary. Both directions of Newton Street beginning two hundred (200) feet north of where Newton Street intersects the center line of Morse Street to two hundred twenty -five (225) feet north of where Newton Street intersects with the center line of Wilson Street. (11) Wayne Ryan Elementary School. Both directions on Ryan Road beginning five hundred (500) feet west of the intersection of Creekdale Drive and Ryan Road and continuing east for two thousand seventy -one (2071) feet to a point five hundred (500) feet east of the intersection of Forrestridge Drive and Ryan Road. (12) Pecan Creek Elementary Both directions on Pockrus Page Road beginning one hundred seventy (170) feet west of where Pockrus Page Road intersects the centerline of Waterlily Way and ending one hundred seventy (170) feet east of where Pockrus Page Road intersects the centerline of Waterlily Way. (b) The time periods for reduced speeds for school zones described below shall be from 7:30 a.m. until 8:30 a.m. and from 3:00 p.m. until 4:00 p.m. on school days. The location of school zones described below shall be as follows, to -wit: (1) Strickland Middle School. Both directions of Windsor Drive beginning five hundred sixty (560) feet east of where Windsor Drive intersects the center line of Locust Street to two hundred twenty -five (225) feet east of where Windsor Drive intersects the center line of Bell Avenue. Both directions of Bell Avenue from its intersection with Driftwood Trail to the intersection of Windsor Drive and Bell Avenue. (2) Calhoun Middle School. Both directions of Congress Street from one hundred thirty (13 0) feet west of where Congress Street intersects with the center line of Mounts Street to two hundred (200) feet east of where Congress Street intersects with the center line of Denton Street. Page 4 of 8 S:ALePhOur Documents \Ordinnces \15 \SchoolZ.one (10).doe Both directions of Denton Street from its intersection with Congress Street to one hundred (100) feet south of where Denton Street intersects with the center line of Pearl Street. Both directions of Mounts Street from its intersection with Congress Street to one hundred ninety (190) feet south of where Mounts Street intersects with the center line of Anderson Street. (3) McMath Middle School. Both directions on Londonderry Lane from the intersection with Teasley Lane to one hundred (100) feet east of its intersection with Sam Bass Boulevard. (c) The time periods for reduced speeds for school zones described below shall be from 8:00 a.m. until 9:00 a.m. and from 4:00 p.m. until 5:00 p.m. on school days. The location of school zones described below shall be as follows, to -wit: (1) Denton High School. Both directions of Crescent Street beginning two hundred fifty (250) feet east of where Crescent Street intersects the center line of Bryan Street to one hundred fifty (150) feet east of where Crescent Street intersects with the Center line of Fulton Street. Both directions of Bryan Street beginning two hundred fifty (250) feet south of where Bryan Street intersects the center line of Crescent Street to one hundred fifty (150) feet north of where Bryan Street intersects the center line of Linden Street. Both directions of Fulton Street beginning one hundred fifty (150) feet north of where Fulton Street intersects the center line of Crescent Street to fifty (50) feet north of where Fulton Street intersects the center of Linden Street. See. 18 -211. Twenty -five mile - per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A. Transportation Code § 545.357, the prima facie speed limit of twenty -five (25) miles per hour for vehicles is hereby determined and declared to be prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following school zones. (a) The time periods for the reduced speeds for the school zones described below shall be when the school zone lights are flashing on school days. The location of school zones described below shall be as follows, to -wit: (1) Sam Houston Elementary. Page 5 of 8 S: \Legal \Our Documents \Ordinances \15 \SchoolZone (10).doc Both directions of Teasley Lane beginning three hundred twenty -five (325) feet east of where Teasley Lane intersects the center line of Pennsylvania Drive to three hundred sixty -five (365) feet west of where Teasley Lane intersects the center line of Lillian Miller. Sec. 18 -212. Thirty mile - per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A. Transportation Code § 545.357, the prima facie speed limit of thirty (30) miles per hour for vehicles is hereby determined and declared to be prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following school zones. (a) The time periods for reduced speeds for school zones described below shall be when the school zone lights are flashing on school days. The location of school zones described below shall be as follows, to -wit: (1) Ryan High School. Both directions of McKinney Street /FM 426 beginning five hundred (500) feet west of where McKinney Street /FM 426 intersects with the center line of Ryan High School's driveway to five hundred twenty -five (525) feet east of where McKinney Street intersects with the center line of Ryan High School's driveway. Sec. 18 -213. Thirty -five mile - per -hour zone. Based upon an engineering and transportation department investigation heretofore made, as authorized by the provisions of V.T.C.A. Transportation Code § 545.357, the prima facie speed limit of thirty -five (35) miles per hour for vehicles is hereby determined and declared to be prima facie reasonable and safe, and such speed limit is hereby fixed for vehicles traveling within the following described school zones. (a) The time periods for the reduced speeds for the school zones described below shall be when the school zone lights are flashing on school days. The location of school zones described below shall be as follows, to -wit: (1) The Selwyn School. Both directions of West Highway 380 from four hundred fifty (450) feet east of where West Highway 380 intersects the center line of Marshall Drive to one thousand two hundred (1200) feet west of where West Highway 380 intersects the center line of Mesa Drive. (2) Guyer High School Both directions of Teasley Lane /FM 2181, beginning at TxDOT milepost 0.908 (approximately 1100 feet south of the centerline of Leatherwood Page 6 of 8 S:ALegal \our Documents \0rdinances \1 \SchoolZone (10).doc Road) to TxDOT milepost 1.323 (approximately 1090 feet north of the centerline of Leatherwood Road). Sec. 18 -214. Penalty. When signs are erected giving notice thereof, an individual adjudged guilty of exceeding the herein defined speed limits shall be guilty of a misdemeanor, and punished by a fine not to exceed two hundred dollars ($200.00). Sec. 18- 215 - -18 -219. Reserved. SECTION 2. An individual adjudged guilty of any provision of this Ordinance shall be guilty of a misdemeanor and punished by a fine not to exceed Two Hundred Dollars ($200.00). SECTION 3. This Ordinance shall be cumulative of all other ordinances of the City of Denton defining school zones and school bus loading zones and shall not repeal any of the provisions of said ordinances except in those instances where provisions of those ordinances are in direct conflict with the provisions of this Ordinance. SECTION 4. If in 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 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, 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. ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • CHRIS WATTS, MAYOR Page 7 of 8 S:ALegal \Our Documents \Ordinances \15 \School7one (10).doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY } Page 8 of 8 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -739, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Utility Administration CM/ ACM: Jon Fortune Date: August 18. 2015 SUBJECT Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment 002 for Project Utility Adjustment Agreement No. 35E -U- 0503" which amends the original "Project Utility Adjustment Agreement" in the amount of $1,729,820.01, $50,334.75 of which is payable by the City of Denton for City requested betterments; facilitating and authorizing water and wastewater line relocations for the Interstate Highway 35E project, in substantial conformity with the previously executed Texas Department of Transportation agreements with the Developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and Lane Construction company; and the Texas Department of Transportation; authorizing a quitclaim deed; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND AGL Constructors (AGL) is currently widening and improving IH35E for the Texas Department of Transportation (TxDOT) in various stages from Interstate 635 in Dallas to US Highway 380 in Denton. As part of that effort, AGL is responsible for all phases of detailed design, right -of -way (ROW) and easement acquisitions, utility relocations and roadway construction. AGL has been interfacing with all of the municipalities and various utility providers along the entire corridor in order to coordinate their design efforts and the accommodation of the utilities along the highway. As an agent for TxDOT, AGL has been negotiating with the utility providers to either relocate their assets out of the widened ROW into easements or by providing space for them within the highway's utility accommodation zone, depending on the existing locations of the utilities prior to the IH35E Managed Lanes project. The mechanism by which AGL facilitates this work with a municipality is a Project Utility Adjustment Agreement (PUAA). A PUAA can be set up so that the affected utility provider designs and constructs the necessary relocations or so that the "Developer" (AGL in this case) provides this service. In either case, utility relocations and adjustments are reimbursable through AGL's contract with TxDOT since IH35E is on the interstate highway system, including the provision of new easements to replace existing easements where necessary and applicable. The IH35E Managed Lanes project has varying effects on Denton Water Utilities, depending on the phase or location along the corridor. For instance, south of FM 2181 in Corinth the highway is being fully improved to its anticipated ultimate condition or capacity. North of FM 2181 through US Highway 380 in Denton the City of Denton Page 1 of 3 Printed on 8/13/2015 File #: ID 15 -739, Version: 1 highway is mainly being improved to an interim level with rebuilt lanes, additional general purpose lanes, replaced bridge decking, ramp adjustments and some frontage road modifications. The primary exception to the interim improvements scenario through Denton is the bridge at North Texas Boulevard with its associated ROW and utility adjustments, which will be placed in the ultimate or end condition (no real way to add the main lane capacity without installing the full interchange at this location). Denton Water Utilities has a number of assets along the IH35E corridor which will be impacted by both the ultimate roadway improvements (the raw water lines from Lake Lewisville and water distribution and wastewater collection lines in the areas around North Texas Boulevard) and the interim roadway improvements (water distribution and wastewater collection lines between Post Oak Road and US Highway 380). The most significant of these assets are the 27 -inch and 30 -inch raw water lines from the intake on Lake Lewisville that cross IH35E in Hickory Creek and Lake Dallas. These reinforced concrete pipelines were constructed in 1955 and 1975, respectively. The raw water lines are a critical piece of the Water Department's infrastructure, routing raw water from the Lake Lewisville intake to the Lake Lewisville Water Treatment Plant which provides roughly 50% of the City of Denton's finished water supply. On February 9, 2015, the Public Utility Board recommended approval of PUAA 35E -U -0503 between the City of Denton and AGL Constructors in the amount of $329,435.10 for installation of the sacrificial valves and tie - in stub -outs only. The PUAA was subsequently approved by City Council on March 3, 2015. All of the costs associated with PUAA 35E -U -0503 were borne by AGL Constructors. The Public Utility Board recommended approval of UAAA 001 for the actual adjustment of these two raw water lines on June 22, 2015. UAAA 001 was approved by City Council on June 30, 2015 in the amount of $2,916,668.95, $447,853.65 of which is payable by the City of Denton for City requested betterments. As previously discussed, PUAA 35E -U -0503 serves as the base agreement between the City of Denton and AGL Constructors for all utility adjustments associated with the IH35E Managed Lanes project, and all additional work associated with the IH35E utility relocations will be performed through Utility Adjustment Amendment Agreements (UAAA). The second of these amendments, UAAA 002, is attached hereto as Exhibit 2. This agreement is for the construction of the actual relocations and upsizing (in the case of one water line from 8 -inch diameter to 12 -inch diameter) of existing water and wastewater lines. The increased line size was provided by the Water Utility Department in anticipation of future system demands and needs. AGL has been working with staff to devise relocation plans for these utilities that are in conflict with improvements associated with the IH35E project over the past several months. The plans attached to UAAA 002 in Exhibit 2 depict adjustments of water and wastewater lines along the IH35E Managed Lanes corridor from Post Oak Road on the south to Bonnie Brae Road on the north. The adjustments included in UAAA 002 are also verbally described in the Transmittal Memo from AGL Constructors to Don Toner with the TxDOT located in the front portion of UAAA 002 in Exhibit 2. The total projected cost for the relocation and adjustment of the various lines at their existing sizes as shown in UAAA 002 is $1,679,485.26. The total projected cost for the relocation and adjustment of the various lines at the larger diameter discussed is $1,729,820.01. Therefore, AGL Constructors has calculated the value of upsizing or "betterment" of the line at the request of the Water Utility Department to be $50,334.75, or 2.91% of the total project cost including betterment. UAAA 002 provides an agreement between the City and AGL Constructors to allow AGL Constructors to perform the work on the water and wastewater lines and for the City to reimburse AGL Constructors for the actual costs of the betterment only. Specifically, the agreement states that "upon completion and acceptance by Owner of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Developer the actual cost of the Betterment..." with the "Owner" being the City and the "Developer" being AGL Constructors. The betterment cost payable is City of Denton Page 2 of 3 Printed on 8/13/2015 File #: ID 15 -739, Version: 1 determined by multiplying the actual project costs as invoiced by the "Developer to the Owner" by the percentage calculated above (2.91 %). OPTIONS 1. Approve Utility Adjustment Agreement Amendment 002. 2. Reject Utility Adjustment Agreement Amendment 002. RECOMMENDATION Staff recommends approval of Utility Adjustment Agreement Amendment 002 between the City of Denton and AGL Constructors in the amount of $1,729,820.01, $50,334.75 of which is payable by the City of Denton, for the adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Subsequent adjustments to amend the base PUAA to include other utility adjustments will be brought before PUB and City Council as they are developed. PRIOR ACTION/REVIEW (Council, Boards, Commissions) 1. Public Utilities Board - February 9, 2015. 2. City Council - March 3, 2015. 3. Public Utilities Board - June 22, 2015. 4. City Council - June 30, 2015. FISCAL INFORMATION Reimbursement amounts for raw water line betterments have been programmed into the Water Utility's capital plan in FY 2016. Reimbursement of the actual betterment amounts is required by UAAA 001 within sixty (60) calendar days of receipt of an invoice and supporting documentation from AGL Constructors. Assuming that at least two months will be required to complete the anticipated work, it is believed that the invoice for betterment will not become due until well after the beginning of fiscal year FY 2016. EXHIBITS 1. Ordinance 2. Utility Adjustment Agreement Amendment (UAAA) 002 City of Denton Page 3 of 3 Printed on 8/13/2015 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE "UTILITY ADJUSTMENT AGREEMENT AMENDMENT 002 FOR PROJECT UTILITY ADJUSTMENT AGREEMENT NO. 35E -U- 0503" WHICH AMENDS THE ORIGINAL "PROJECT UTILTY ADJUSTMENT AGREEMENT" IN THE AMOUNT OF $1,729,820.01, $50,334.75 OF WHICH IS PAYABLE BY THE CITY OF DENTON FOR CITY REQUESTED BETTERMENTS; FACILITATING AND AUTHORIZING WATER AND WASTEWATER LINE RELOCATIONS FOR THE INTERSTATE HIGHWAY 35E PROJECT, IN SUBSTANTIAL CONFORMITY WITH THE PREVIOUSLY EXECUTED 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 EXECUTION OF A QUITCLAIM DEED; 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 water and wastewater utility facilities and infrastructure owned and operated by the City; 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 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 ") previously entered into by and between the City and the Developer, and approved by TxDOT, such agreement provides for the adjustment of certain water and wastewater utilities owned and operated by the City; and WHEREAS, it has become necessary to modify and amend the Project Utility Adjustment Agreement ( "PUAA ") entered into on March 3, 2015, to further add to or adjust the City's water and wastewater facilities and infrastructure, namely various City water and wastewater lines along the Interstate Highway 35 East corridor, and the City and Developer propose entering into Utility Adjustment Agreement Amendment No. 002 ( "35E -U -503- 002 "), which covers adjustments not covered under the original PUAA, as well as to provide for the terms and conditions which are required by the proposed Utility Adjustment Agreement Amendment No. 002; 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 the Utility Adjustment Agreement Amendment 002 for Project Utility Adjustment Agreement No. 35E -U -503 -002" ( "Amendment No. 002 to PUAA ") for water and wastewater facilities and infrastructure relocations for the Interstate Highway 35 Project, with the Developer, AGL Constructors, LLC; 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 "Amendment No. 002 to PUAA" which is attached hereto as Exhibit "A," and is incorporated herewith by reference. SECTION 3. The City Manager or his designee is hereby authorized to execute a quitclaim deed as well as to expend funds as provided for in the attached "Amendment No. 002 to PUAA" for Project betterments at the time the payment obligation arises, once the Amendment No. 002 to PUAA document is fully executed and delivered by all parties thereto, and the Project approved upon its completion by the City. 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 LION APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: �, ARCHER WESTERN • GRANITE • LANE r City of Denton Utility Adjustment Agreement Amendment 002 For Project Utility Adjustment Agreement 35E -U -0503 (Conflict ID 503 -068, 503 -069, 503 -070, 503 -071, 503- 072) 503 -076 & 503 -088) I H35E From FH 635 to US 380 Water & Wastewater Relocation Segment 4 TXDOT Copy j4 CONSTRUCTORS Table of Contents Utility Adjustment Agreement Amendment 35E -U- 0503 -002 1.) Transmittal Memo 2.) Utility Assembly Checklists - Utility Adjustment Checklist - UM No Conflict Sign -Off Form - UDC No Conflict Sign -Off Form 3.) Executed Project Utility Adjustment Agreement "Exhibit A" - Utility Adjustment Plans & Specifications - Utility Adjustment Cost Estimate 4.) Utility Joint Use Acknowledgment (UJUA) "Exhibit C" 5.) Affidavit of Property Interest 6.) Quitclaim Deed 7.) ROW Map AR[NER WESTERN • GRANITE • LANE August 6, 2015 Mr. Don Toner SR/WA North Texas CDA Program Lead TxDOT — Strategic Projects Division 3301 W. Airport Freeway, Ste 100 Bedford, Texas 76021 817 -508 -7654 Fax 817 - 685 -7561 RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 CSJ -C No. 0196 -01 -056 , 0196- 03 -050 & 0196 -03 -071 Limits: From FM 2181 South in Corinth To US 380 Dear Mr. Toner, AGL Constructors would like to submit this Utility Adjustment Agreement Amendment (UAAA) Assembly 3513-U- 0503 -002 for your approval. This Assembly Package is for adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Based on review of existing city facilities located within the limits of the attached plan set, AGL has analyzed the following water and wastewater lines to conflict with the proposed widening along IH35E: Adjustment of Conflict ID 503 -068: The relocation of Conflict ID 503 -068 will consist of the installation of approximately 847 If. of 8" PVC C900 waterline, 160 If. of 16" steel casing, and appropriate appurtenances from ML Station 1977 +79 to ML Station 1984 +66. The proposed 8" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 8" waterline on the southwest side of IH 35E at ML Station 1977 +79. The 8" waterline will travel northwest for 3 If. and enter a 16" steel casing at ML Station 1977 +81. The waterline and steel casing will continue northwest for 51 If. and the waterline will exit the steel casing at ML Station 1978 +34. The waterline will continue northwest for 1 If. turn north, travel for 71 If., turn northwest, travel for 301 If., and connect to a proposed 8" x 8" tee at ML Station 1981 +82. The newly introduced 8" waterline will travel southwest for 3 If., turn northwest, travel for 15 If., turn west, travel 64 If., and connect to an existing 8" waterline at ML Station 1982 +55. The initial waterline continues to the northwest for 17 If., turn west, and enter a 16" steel casing at ML Station 1982 +00. The waterline and steel casing will continue west for 89 If. and the casing will end at ML Station 1982 +80. The 8" waterline will continue west for 11 If., turn north, travel for 45 If., and enter a proposed 16" steel casing at ML Station 1983 +13. The waterline and steel casing will continue north for 20 If. and the waterline will r RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 CSJ -C No. 0196 -01 -056 , 0196- 03 -050 & 0196 -03 -071 Limits: From FM 2181 South in Corinth To US 380 exit the steel casing at ML Station 1983 +23. The waterline will continue north for 2 If. turn northwest, travel for 66 If., turn west, travel for 56 If., turn northwest, travel for 14 If., turn north, travel 18 If., and connect to an existing 8" water line at ML Station 1984 +66. Adjustment of Conflict ID 503 -069: The relocation of Conflict ID 503 -069 will consist of the installation of approximately 792 If. of 8" PVC C900 waterline, 103 If. of 16" steel casing, 311 If. of 16" C905 DR25 PVC casing, and appropriate appurtenances from ML Station 1979 +14 to ML Station 1985 +29. The proposed 8" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 8" waterline on the northeast side of IH 35E at ML Station 1979 +14. The 8" waterline will travel north for 5 If., turn northwest, travel for 64 If., turn north - northwest, travel 13 If., and connect to Conflict ID 503 -071 with a 8" x 12" tee at ML Station 1979 +90. The waterline will continue north - northwest for 25 If., turn north, travel for 13 If., turn northeast, travel for 1 If., turn north, travel for 75 If., and connect to a 8" x 8" tee at ML Station 1980 +48. The newly introduced waterline will run north for 35 If., turn west, travel for 15 If., and connect to an existing 8" waterline at ML Station 1980 +77. The initial line will travel west for 4 If. and enter a proposed 16" steel casing at ML Station 1980 +51. The waterline and steel casing will travel for 35 If. and the waterline will exit the steel casing at ML Station 1980 +80. The waterline will continue west for 1 If., turn southwest, travel for 76 If., turn northwest, travel 2 If., and enter a proposed 16" PVC casing at ML Station 1981 +19. The waterline and PVC casing will travel for 311 If. and the PVC casing will end at ML Station 1984 +23. The waterline will continue northwest for 1 If., turn north, 46 If., turn west, travel for 15 If., and enter a 16" steel casing at ML Station 1984 +61. The waterline and steel casing will continue west for 68 If. and the waterline will exit the steel casing at ML Station 1985 +27. The waterline will continue west for 3 If and connect to an existing 8" waterline ML Station 1985 +29. Adjustment of Conflict ID 503 -070: The relocation of Conflict ID 503 -070 will consist of the installation of approximately 197 If. of 15" SDR26 PVC wastewater line, 366 If. of 12" SDR26 PVC wastewater line and appropriate appurtenances from ML Station 1979 +12 to ML Station 1984 +62. The proposed 15" and 12" wastewater lines are replacing an existing 12" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will begin at a proposed wastewater manhole on the northeast side of IH 35E at ML Station 1979 +12. The 15" wastewater line will travel northwest for 126 If., connect to a proposed wastewater manhole at ML Station 1980 +35, continue northwest for 71 If., connect to a proposed wastewater manhole at ML Station i RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002., City of Denton, CSJ -R No. 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 CSJ -C No. 0196 -01 -056 , 0196- 03 -050 & 0196 -03 -071 Limits: From FM 2181 South in Corinth To US 380 1981 +04, and the 15" SDR26 PVC line will change to 12" SDR26 PVC. The 12" line will continue northwest for 3661f. and connect to a proposed wastewater manhole at ML Station 1984 +62. Adjustment of Conflict ID 503 -071: The relocation of Conflict ID 503 -071 will consist of the installation of approximately 482 If. of 12" PVC C900 waterline, 415 If. of 24" steel casing, and appropriate appurtenances from ML Station 1977 +81 to 1979 +90. The proposed 12" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 12" waterline on the southwest side of IH 35E at ML Station 1977 +81. The 12" waterline will travel east 6 If., turn northeast, travel for 22 If., turn north, travel for 18 If. and enter a proposed 24" steel casing at ML Station 1977 +80. The waterline and steel casing will travel north for 415 If., where the waterline will exit the steel casing at ML Station 1979 +88. The waterline will continue to the north for 14 If., turn northeast, travel for 9 If., and connect to Conflict ID 503 -069 with a 12" x 8" tee at ML Station 1979 +90. Adjustment of Conflict ID 503 -072: The relocation of Conflict ID 503 -072 will consist of the installation of approximately 212 If. of 8" SDR26 PVC wastewater line and appropriate appurtenances from ML Station 1982 +62 to 1984 +41. The proposed 8" wastewater line is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will begin at a proposed wastewater manhole in Avenue C at ML Station 1982 +62. The 8" wastewater line will travel north for 58 If., connect to a proposed manhole at ML Station 1982 +84, turn northwest, travel for 153 If., and connect to a proposed manhole at ML Station 1984 +41. Adjustment of Conflict ID 503 -076: The relocation of Conflict ID 503 -076 will consist of the installation of approximately 2,788 If. of 8" PVC C900 waterline, 210 If. of 16" steel casing, and appropriate appurtenances from ML Station 1991 +57 to 2018 +34. The proposed 8" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 8" waterline on the southwest side of I35E at ML Station 1991 +57. The 8" waterline will travel southwest for 14 If., cross the proposed Right of Way (ROW), and enter a proposed 20' utility easement. The waterline will turn northwest, travel 41 If., and enter a proposed 16" steel casing at ML Station 1991 +96. The waterline and steel casing will travel northwest for 122 If., and the waterline will exit the steel casing at ML Station 1993 +18. The 8" waterline will continue initially northwest and will travel at a 5' offset outside of the proposed Right of Way (ROW) for 2611 If. The relocation will connect to an existing 8" waterline at ML fimu &:IHER WESTERN m UMTE m> AllMIE r RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 CSJ -C No. 0196 -01 -056 , 0196- 03 -050 & 0196 -03 -071 Limits: From FM 2181 South in Corinth To US 380 Station 2018 +34. The waterline will enter and exit a 40 If., 16" steel casing from ML Station 2006 +30 to 2006 +70. The waterline will enter and exit a 48 If., 16" steel casing from ML Station 2009 +76 to 2010 +24. Adjustment of Conflict ID 503 -088: The relocation of Conflict ID 503 -088 under this UAAA shall consist of the installation of approximately 181 If. of 16" DIP Class 52 AWWA C150 waterline, 105 If. of 24" steel casing, and appropriate appurtenances from ML Station 1716 +39 to 1718 +13. The proposed 16" waterline is replacing an existing 16" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 16" waterline on the southwest side of IH 35E at ML Station 1716 +39. The proposed 16" waterline will travel north 9 If., turn northwest, travel for 12 If., and enter a proposed 24" steel casing at ML Station 1716 +57. The waterline and steel casing will continue northwest for approximately 105 If and the waterline will exit the steel casing at ML Station 1717 +61. The waterline will continue northwest for 45 If., turn west, travel for 10 If., and connect to an existing 16" waterline at ML Station 1718 +13. The abandonment of the existing facilities shall be completed in accordance with AGL's Demolition and Abandonment Plan, UAR requirements, and details that are identified in the attached plans. All existing facilities identified in this immediate area that are not being adjusted at this time will be recorded under a future Abbreviated Utility Assembly to be executed in accordance with the Development Agreement (DA). In accordance with the DA, replacement cost for "like kind" relocations associated with this adjustment are 100% compensable to the City of Denton. All work being completed under this UAAA shall be completed by AGL and or their subcontractors. The City of Denton has elected to upgrade a facility for a betterment of $50,334.75 (2.91% of the total cost). The total cost is $1,729,820.01. The total cost to relocate the City of Denton facilities without betterment is $1,679,485.26. The breakdown of cost based on the Right of Way CSJ's are as follows: CSJ 0196 -01- 100 =3.09% ($53,451.44); CSJ 0195 -03- 072 = 74.20% ($1,283,526.45); CSJ 0195 -03- 080 =8.47% ($146,515.75); CSJ 0195 -03- 074 = 14.24% ($246,326.37). The current schedule for work under this UAAA is set to begin on or about July 13, 2015 with substantial completion identified to be prior to October 16, 2015. R5 6 O u0W IPo 4N'k 4n tl 1�VIH * GftA N k T t « I AP lk i'r ` RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 CSJ -C No. 0196 -01 -056 , 0196- 03 -050 & 0196 -03 -071 Limits: From FM 2181 South in Corinth To US 380 We respectfully recommend your approval of this Utility Adjustment Agreement Amendment (35E- U- 0503 -002) as submitted. If you have any questions or require additional information, please contact me through the information provided below. Sincerely, Signed: Rich l ......_ Krog, ( � AGL Utility Manager 1.214.483.7633 (Direct) 1.512.207.0782 (Mobile) Email: rkrog @ltraengineers.com Cc: AGL Document Control IH35- Checklist Rev. 11/2012 Page 1 of 4 1 I it UTILITY ADJUSTMENT CHECKLIST (To be included with submittal) U -No.: 35E-U-0503-002 Utility Owner Name: City of Denton County: Denton Jurisdictions: 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 Estimated Dollar Amount of Utility Adjustment /Cost to Developer: $1,729,820.01/$1,679,485.26 ROW CSJ No.: 0196-01-100,0195-03-072, 0195 -03 -080 & 0195 -03 -074 Construction CSJ No.: 0196 -01 -056, 0196 -03 -050 & 0196 -03 -071 Section or Segment Number: Segment 4 ® Actual Cost or ❑ Lump Sum (Check one) Federal -Aid ROW Project No.: IM 0356 (43 8) Alternate Procedure Approval Date: September 4, 2013 Highway Station Limits (To & From): IH35E — Segment 4: ROW CSJ 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195- 03 -074 From: FM 2181 South in Corinth To: US 380 Description/Scope of Work: -h - — ptsslr ca t �.Jt liiy es f -168 f)?lf� ?il 071 _5 " -0/, 03 - 17?.,5Q. 0 "Ifs. & 503 -088: Relocation will consist of 4,4271f. of 8" PVC C900 waterline, 482 If of 12" PVC C900 waterline, 181 If. of 16" DIP Class 52 AWWA C150 waterline, 2121f. of 8" SDR26 PVC wastewater line, 366 If. of 12" SDR26 PVC wastewater line, 1971£ of 15" SDR26 PVC wastewater line, 311 1£ of 16" C905 DR25 PVC casing, 473 If. of 16" steel casing, and 520 If. of 24" steel casing placed along IH35E from ML Station 1716 +39 to ML Station 2018 +34. Adjustments shall also include a crossing of IH35E near ML Station 1979 +00. 1. Yes M No ❑ N/A ❑ Approved & current ROW Maps on file with TxDOT? 2. Yes ® No ❑ N/A ❑ Is the Utility Adjustment within the Facility ROW limits or directly related to work required within Facility ROW limits? IH35- Checklist Rev. 11/2012 Page 2 of 4 3. Yes ® No ❑ N/A ❑ Are explanations and clarifications included in the transmittal to describe unique conditions affecting the Utility? 4. Yes ® No ❑ N/A ❑ Have (3) identical originals of the Utility Assembly with plans been submitted, of which one original should be color- coded? 5. Yes ® No ❑N /A ❑ Has the Developer's Utility Design Coordinator located on the plans the major items of material listed on the estimate by scaling or stationing? 6. Yes ® No ❑ N/A ❑ Have the existing and proposed Utility facilities been plotted on the ROW map and attached with this submission? 7. Yes ® No ❑ N/A ❑ Have the Utility Adjustments been designed for the Proposed 12. Yes ® No ❑ N/A ❑ Are all forms submitted complete and correct for the situation /circumstance of the Utility Adjustment? 13. Yes ❑ No ❑ N/A ® Has the Statement Covering Utility Construction Contract Work (TxDOT Form ROW -U -48) been submitted for work completed by an owner - managed contractor? 14. Yes ® No ❑ N/A ❑ Is the Utility Assembly folded so as to fit into an 8.5" x 11" file? 15. Yes ❑ No ® N/A ❑ Are any of the proposed Utility facilities installed longitudinally inside the control of access, excluding areas near ramp terminals? 16. Yes ❑ No ❑ N/A ® Has Barlow's Formula information been submitted for unencased high - pressure pipelines? The following information is required to complete Barlow's formula. S =Yield Strength, Wall thickness = t, Outside Diameter = D, Design Factor = F. Maximum Operating Pressure must also be given and compared to the pressure Configuration? 8. Yes ® No ❑ N/A ❑ Has the Utility Owner signed the plans for a Developer Managed PUAA (DM)? 9. Yes ❑ No ❑ N/A ® Has the Utility Owner signed the plans for an Owner Managed (OM) PUAA that allows for the Developer to design for the Utility Adjustment? 10. Yes ❑ No ❑ N/A ® If the agreed sum method has been marked, has a detailed, itemized estimate and matching plans been provided? 11. Yes ® No ❑ N/A ❑ Is the Utility consultant- engineering contract reviewed and approved by the Developer's Utility Manager (UM)? 12. Yes ® No ❑ N/A ❑ Are all forms submitted complete and correct for the situation /circumstance of the Utility Adjustment? 13. Yes ❑ No ❑ N/A ® Has the Statement Covering Utility Construction Contract Work (TxDOT Form ROW -U -48) been submitted for work completed by an owner - managed contractor? 14. Yes ® No ❑ N/A ❑ Is the Utility Assembly folded so as to fit into an 8.5" x 11" file? 15. Yes ❑ No ® N/A ❑ Are any of the proposed Utility facilities installed longitudinally inside the control of access, excluding areas near ramp terminals? 16. Yes ❑ No ❑ N/A ® Has Barlow's Formula information been submitted for unencased high - pressure pipelines? The following information is required to complete Barlow's formula. S =Yield Strength, Wall thickness = t, Outside Diameter = D, Design Factor = F. Maximum Operating Pressure must also be given and compared to the pressure FN IH35- Checklist Rev. 11/2012 Page 3 of 4 calculated with Barlow's. The Barlow calculation must be shown with the submission. 17. Yes ❑ No ❑ N/A ® If the pipeline is unencased, is there adequate coating, wrapping and cathodic protection? 18. Yes ® No ❑ N/A ❑ Are replacement Utility ROW charges justified and supported? 19. Yes ® No ❑ N/A ❑ If yes to #18, is an affidavit and an ownership instrument (i.e. easement, license or deed) included? 20. Yes ® No ❑ N/A ❑ Do Utility Adjustment plans demonstrate Utility Accommodation Rules compliance, including minimum depth of cover from proposed grade and casing requirements? 21. Yes ®No ❑ N/A ❑ Is the proposed Utility Adjustment shown on the plans with stationing and offsets from centerline, edge of pavement, or ROW lines? 22. Yes ® No ❑ N/A ❑ Are backfill requirements met? 23. Yes ❑ No ❑ N/A ® Is a schedule of work provided by /required of the Utility Company 24. Yes ® No ❑ N/A ❑ 25. Yes ® No ❑ N/A 26. Yes ❑ No ❑ N/A 27. Yes ❑ No ❑ N/A 28. Yes ❑ No ❑ N/A 29. Yes ❑ No El N/A 30. Yes ® No ❑ N/A ❑ 31. Yes ®No ❑ N/A ❑ 32. Yes ❑ No ® N/A ❑ 33. Yes ® No ❑ N/A ❑ if the Utility Adjustment is large and complex? Is a Betterment credit applicable? If yes to #24, is the credit calculated and applied properly? Is accrued depreciation credit applicable? If accrued depreciation is applicable, is credit applied properly? Is salvage credit applicable? If salvage credit applicable, is the credit applied properly? Are overheads and loadings checked for reasonableness? Are cost estimate extensions checked? Is a correct & recorded Quitclaim Deed (TxDOT Form ROW -N- 30) submitted, if required? Has a recommendation for approval been stated on the transmittal memorandum? IH35- Checklist Rev. 11/2012 Page 4 of 4 34. Yes ❑ No ® N/A ❑ Is the Utility Adjustment in only one jurisdiction? 35. Yes ® No ❑ N/A ❑ If the Utility Adjustment is in more than one jurisdiction, have the percentages in each jurisdiction been detailed in the transmittal memorandum? 36. Yes ® No ❑ N/A ❑ Are the sign -off forms attached? 37. Yes ® No ❑ N/A ❑ Have the plans for the Utility Adjustment been sealed by a Registered Professional Engineer? Prepared by: 1,AtiiiIy re orc: .tar Approved by:. ..._.. _� ;.� .......... . Utility Manag r e Recommended for Approval b ° . 'nality Coq of Date: t o' Comments: 11135E- USO -UM Rev 6/2013 Page 1 of 1 Developer's Utility Manager Utility No Conflict Sign -Off Form Utility Manager: Rich Krog Date plans received: 7/10/15 Utility Company: City of Denton Assembly "U" number: 35E -u- 0503 -002 Type of Utilities: Water & Wastewater Lines Date on Utility's plans: 7/10/15 No. of sheets in Utility's plans: 39 I, the Utility Manager (UM) working on behalf of the Developer (AGL) certify that a review of the above referenced Utility plans concerning the proposed highway improvements on the IH 35 Managed lanes has been completed and have not identified any conflicts between the Utility's proposed relocation and any existing and /or proposed Utilities. The proposed Utility plans conform to Title 43, Texas Administrative Code, Section 21.31 — 21.56 of the Utility Accommodation Rules. Check box if there are any areas of concern and insert comments below: Print Name: Sign Name:° (UDC) � ,� �" _.�, Date ,... Utility Coordination Firm Name: LTRA This form must be completed /signed and included in each Utility Assembly submitted to the Texas Department of Transportation. IH35E -USO -UDC Rev. 6/2013 Page 1 of 1 Utility Design Coordinator Date plans received: Utility Company: Assembly "U" number: Type of Utilities: Date on Utility's plans: Developer's Utility Design Coordinator Utility No Conflict Sign -Off Form Joseph Murphy ri 7/10/15 City of ...,.,.W._._���... .� Den ton _� __WV_...._.._... __ .._ ..................... 35E -U- 0503 -002 ...... .._.. ..... .. .. ....... _ ..... Water & Wastewater Lines 7/10/15 No. of sheets in Utility's plans: 39 I, the Utility Design Coordinator (UDC) on behalf of the Developer (AGL ) certify that a review of the above referenced Utility plans concerning the proposed highway improvements on the IH 35 Managed Lanes has been completed and have not identified any conflicts between the Utility's proposed relocation and any design features. Design features include but are not limited to pavement structures, drainage facilities, bridges, retaining walls, traffic signals, illumination, signs, foundations, duct /conduit, ground boxes, erosion control facilities, water quality facilities and other Developer- Managed Utilities. Any design changes to the IH 35 Managed Lanes roadway after the signing of this form will be coordinated through the Developer's Utility Manager and the affected Utility Owner. ❑ Check box if there are any areas of concern and insert comments below: Print Name: (UDC) Joseph MurphY___._....� ..... ......... � Date: Utility Design Coordinator (UDC) Sign Name:�� � .....� (UDC) "' "' °m' — Date Utility Coordination Firm Name: LIRA This form must be completed /signed and included in each Utility Assembly submitted to the Texas Department of Transportation. Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 1 of 6 Rev. 08/12 County: Denton Highway: IH 35E Limits: From: FM 2181 South in Corinth To: US 380 Fed. Proj. No.: IM 0356 (438) ROW CSJ No.:0196 -01 -100, 0195 -03- 072,0195 -03 -080 & 0195 -03 -074 Const. CSJ No.: 0196 -01 -056, 0196 -03- 050 & 0196 -03 -071 UTILITY ADJUSTMENT AGREEMENT AMENDMENT (Developer Managed) (Amendment No. 002 to Agreement No.: 35E -U -0503 THIS AMENDMENT TO PROJECT UTILITY ADJUSTMENT AGREEMENT (this "Amendment "), by and between AGL Constructors, hereinafter identified as the "Developer ", and the City of Denton, 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 Development Agreement ( "DA ") 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 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: 1.1 Plans. (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 utility 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 2 of 6 Rev. 08/12 facility(ies) ( "Additional Owner Utilities ") and proposed Adjustment(s) to the Owner Utilities described in the Original Agreement; Relocation will consist of 4,4271f. of 8" PVC C900 waterline, 4821f. of 12" PVC C900 waterline, 181 If. of 16" DIP Class 52 AWWA C150 waterline, 2121f. of 8" SDR26 PVC wastewater line, 3661f. of 12" SDR26 PVC wastewater line, 1971f. of 15" SDR26 PVC wastewater line, 311 If. of 16" C905 DR25 PVC casing, 473 If. of 16" steel casing, and 5201f. of 24" steel casing placed along IH35E from ML Station 1716 +39 to ML Station 2018 +34. Adjustments shall also include a crossing of IH35E near ML Station 1979 +00. (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 15(a) of the Original Agreement. 1.2 Reimbursement of Owner's Indirect Costs. For purposes of Paragraph 6 of the Original Agreement, the following terms apply to the Additional Owner Utilities and proposed Adjustment: (a) Developer agrees to reimburse the Owner its share of the Owner's indirect costs (e.g., engineering, inspection, testing, ROW) as identified in Exhibit A. When requested by the Owner, monthly progress payments will be made. The monthly payment will not exceed 80% of the estimated indirect work done to date. Once the indirect work is complete, final payment of the eligible indirect costs will be made. Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. (b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall be developed pursuant to the method checked and described below [check only one box]: (1) Actual related indirect costs accumulated in accordance with (i) a work order accounting procedure prescribed by the applicable Federal or State regulatory body, or (ii) established accounting procedure developed by the Owner and which the Owner uses in its regular operations (either (i) or (ii) referred to as "Actual Cost ") or, (2) The agreed sum of $_ ( "Agreed Sum ") as supported by the analysis of the Owner's estimated costs attached hereto as part of Exhibit A. 1.3 Advancement of Funds by Owner for Construction Costs. (a) Advancement of Owner's Share, if any, of estimated costs 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 3 of 6 Rev. 08/12 Exhibit A shall identify all estimated engineering and construction - related costs, including labor, material, equipment and other miscellaneous construction items. Exhibit A shall also identify the Owner's and Developer's respective shares of the estimated costs. The Owner shall advance to the Developer its allocated share, if any, of the estimated costs for construction and engineering work to be performed by Developer, in accordance with the following terms: ® The adjustment of the Owner's Utilities does not require advancement of funds. ❑ The adjustment of the Owner's Utilities does require advancement of funds and the terms agreed to between the Developer and Owner are listed below. [Insert terms of advance funding to be agreed between Developer and Owner.] (b) Adjustment Based on Actual Costs or Agreed Sum [Check the one appropriate provision, if advancement of funds is required]: ❑ The Owner is responsible for its share of the Developer actual cost for the Adjustment, including the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both parties pursuant to this Amendment, (i) the Owner shall pay to the Developer the amount, if any, by which the actual cost of the Betterment (as determined in Paragraph 9(b)) plus the actual cost of Owner's share of the Adjustment (based on the allocation set forth in Exhibit A) exceeds the estimated cost advanced by the Owner, or (ii) the Developer shall refund to the Owner the amount, if any, by which such advance exceeds such actual cost, as applicable. ❑ The Agreed Sum is the agreed and final amount due for the Adjustment, including any Betterment, under this Amendment. Accordingly, no adjustment (either up or down) of such amount shall be made based on actual costs. 1.4 Paragraph intentionally left blank. 1.5 Resaonsibility for Costs of Adjustment Work. For purposes of Paragraph 4 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 hereto 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 9 of the Original Agreement. 1.6 Betterment. (a) Paragraph 9(b) (Betterment and Salvage) of the Original Agreement is hereby amended to add the following [Check the one box that applies, and complete if appropriate]: ❑ The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, does not include any Betterment. 365451 _3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -11-13 5E Page 4 of 6 Rev. 08/12 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]: upgrading an existing 8" waterline with a 12" waterline. The Developer has provided to the Owner comparative estimates for (i) all work to be performed by the Developer 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 Owner. The estimated cost of the Developer work under this Amendment which is attributable to Betterment is $50,334.75, calculated by subtracting (ii) from (i). The percentage of the total cost of the Developer work under this Amendment which is attributable to Betterment is 2.91 %, calculated by subtracting (ii) from (i), which remainder is divided by (i). (b) If Paragraph 1.6(a) identifies Betterment, the Owner shall, after proof of implementation of betterment, advance to the Developer in sixty (60) days from receipt of invoice from Developer, the cost attributable to Betterment as set forth in Paragraph 1.6(a). The estimated cost stated in Paragraph 1.6(a) of this Amendment is the agreed and final amount due for Betterment under this Amendment, and accordingly no adjustment (either up or down) of such amount shall be made based on actual costs. The Owner is responsible for the Developer's actual cost for the identified Betterment. Accordingly, upon completion and acceptance by Owner of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Developer the actual cost of the Betterment (determined as provided below in this paragraph). Any additional payment by the Owner shall be due within sixty (60) calendar days after the Owner's receipt of the Developer's invoice therefor, together with supporting documentation including proof of implementation;. The actual cost of Betterment incurred by the Developer shall be calculated by multiplying (i) the Betterment percentage stated in Paragraph 1.6(a), by (ii) the actual cost of all work performed by the Developer pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Developer to the Owner. (c) 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 15 of the Original Agreement. (d) If Paragraph 1.6(a) identifies Betterment, the amount allocable to Betterment in Owner's indirect costs shall be determined by applying the percentage of the Betterment calculated in Paragraph 1.6(a) to the Owner's indirect costs. The Owner's invoice to the Developer for the Developer's share of the Owner's indirect costs shall credit the Developer with any Betterment amount detennined pursuant to this Paragraph 1.6(a). (e) 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 Owner's invoice to the Developer for its costs shall credit the Developer with the salvage value for such materials and /or parts 1.7 Miscellaneous. 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 5 of 6 Rev. 08/12 (a) Owner and Developer agree to refer to this Amendment, designated by the "Amendment No." and "Agreement Number" indicated on page 1 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. (b) [Include any other proposed amendments allowed by applicable law.] 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. 365451 _3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 6 of 6 Rev. 08/12 APPROVED BY: DEVELOPER TEXAS DEPARTMENT OF TRANSPORTATION OWNER CITY OF DENTON Duly Authorized Representative Printed Name: George C.'<utpel Title: City Manager Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, ;,1 P , 1 TO RN[ZY BY. d � .. f 365451 ,3.DOC Authorized Signature Duly Ithod Repiesentateve Printed Printed Name: Donald C. Toner, Jr., SR/WA Name: _ Director— Strategic Projects Right of Way Strategic Projects Division Title: _ Date Date: OWNER CITY OF DENTON Duly Authorized Representative Printed Name: George C.'<utpel Title: City Manager Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, ;,1 P , 1 TO RN[ZY BY. d � .. f 365451 ,3.DOC CIO cE fl- �f: ry < rl) by W uj < tai Q1 _ 1 t NJ 0', S LO 0 Ln LU S 0 LA 0 n 0 LI) O 1 0 Lf') ly, < 0 D I j� 4, Lf) LU Z z LLJ UJ C) C�) f— rn o Ln ul v� (\j LL O A A Z 2 ? ? Y ? 5 0., IS V V. 41 . .... . ... 2 2 �o, oz 8 crc lu 1. t; 21 L 5, i, Z, Q 4 4 4 2 2 A 2 'A rn 2 T! 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VF N plij fly SVogtuG MIJ SIOZ19319 --400 04o0uvi Pivon UT -21 - City of Denton Item QTY 1 Unit I Unit Cost Subtotal 8" Tee EA 2 EA $ 250.00 $ 500.00 8" Plug LF 2 EA $ 250.00 $ 500.00 8" X 6" Tee $ 1 EA $ 250.00 $ 250.00 8" PVC Waterline 150.00 524 LF $ 110.00 $ 57,640.00 8" PVC Waterline (Bore) $ 89 LF $ 345.00 $ 30,705.00 8" DI Class 52 Water Pipe 2,500.00 150 LF $ 110.00 $ 16,500.00 6" Gate Valves Abandonment & Removal (8" WO 1 EA $ 1,500.00 $ 1,500.00 8" Gate Valves 6 EA $ 1,700.00 $ 10,200.00 FH Assembly 1 EA $ 4,000.00 $ 4,000.00 Abandonment & Removal (8" WL) 786.5 LF $ 10.00 $ 7,865.00 16" ID X 3/8" Thick Steel Encasement 160 LF $ 150.00 $ 24,000.00 8" Tee 2 EA $ 250.00 $ 500.00 8" Plug 3 EA $ 250.00 $ 750.00 8" X 6" Tee 2 EA $ 250.00 $ 500.00 6" Gate Valves 2 EA $ 1,500.00 $ 3,000.00 8" Gate Valves 6 EA $ 1,700.00 $ 10,200.00 8" PVC Waterline 730 LF $ 110.00 $ 80,300.00 8" PVC C900 Waterline (Bore) 34 LF $ 345.00 $ 11,730.00 16" C905 DR25 PVC Casing Pipe 311 LF $ 135.00 $ 41,985.00 16" X 3,/8" Thick Steel Encasement 102 LF $ 200.00 $ 20,400.00 FH Assembly 2 EA $ 4,000.00 $ 8,000.00 Abandonment & Removal (8" WO 818 LF $ 10.001 $ 8,180.00 4' Diameter Manhole 6 EA $ 3,500.00 $ 21,000.00 12" SDR26 PVC Wastewater Pipe 366 LF $ 80.00 $ 29,280.00 15" SDR26 PVC Wastewater Pie 197 LF $ 85.00 $ 16,745.00 Abandonment & Removal (12" WW) 846 LF $ 10.00'7$ 8,460.00 8" Gate Valves 1 EA $ 1,700.00 $ 1,700.00 8" PVC Waterline 46 LF $ 200.00 $ 9,200.00 8" PVC Waterline (Bore) 415 LF $ 100.00 $ 41,500.00 8" DIP Class 52 AWWA C150 22 LF $ 150.00 $ 3,300.00 8" Plug 1 EA $ 350.00 $ 350.00 8" Valves 1 EA $ 2,500.00 $ 2,500.00 16" Steel Casing (Bore) 415 LF $ 311.00 $ 129,065.00 Abandonment & Removal (8" WO 218 LF $ 10.00 $ 2,180.00 Diameter Manhole 1 3 EA $ 3,500.001 $ 10,500.00 SDR35 Wastewater Pipe (Open Cut) 1 212 LF $ 70.00 1 $ 14,840.00 City Inspection 3.25 HR $ 95.00 $ 25,008.75 City Engineering Et 54 HR $ 325.00 $ 50,050.00 *AGL OH &P 35 % $ 1,239,655.75 $ 433,879.51 l ROW Credit 7643 1 SQFT 1 $ 14.00 $ 107,002.00 Easement Acquisition 1 425 1 SQFT I', $ 14.00 1$ 5,950.00 UT -21 Civil Subtotal $ 1,057,595.00 Civil Subtotal $ 1,057,595.00 ROW Subtotal $ 107,002.00 GRAND TOTAL $ 1,679,485.26 *OH &P - (Overhead and Profit 35 %) - Spread Factor incorporating: 1) Indirect Costs of Labor + Burden, Temporary Materials, Equipment, Equipment Operating Expense, and Subcontract. 2) Cost Add -ons of Insurances, Labor Escalation, Fuel Escalation, Joint Venture Management /Sponsor Fee, Contingency, Texas Franchise Tax, and Bond. 3) Fee and 4) Design Note: Spread factors were provided to TxDOT in the Estimate Recap of the Escrow Documents and are proprietary and confidential to the AGL Joint Venture. *AGL OH &P 1 0.35 1 % 1$ 37,285.00 1 $ 13,049.75 Grand Total $ 50,334.75 UTILITY JOINT USE ACKNOWLEDGEMENT Form ROW -U- JUAA -DA (Rev. 11/12) Page 1 of 2 U- Number:35E -U- 0503 -002 ROW CSJ: 0196 -01 -100, 0195 -03 -072, 0195 -03- County: Denton 080 & 0195 -03 -074 District: Dallas Highway: IH 35E Federal Project No.: IM 0356 (438) From: FM 2181 South in Corinth Projected Highway Letting Date: 11/18/13 To: US 380 WHEREAS, the State of Texas, ( "State "), acting by and through the Texas Department of Transportation ( "TxDOT "), proposes to make certain highway improvements on that section of the above - indicated highway; and WHEREAS, the City of Denton, ( "Utility "), proposes to adjust or relocate certain of its facilities, if applicable, and retain title to any property rights it may have on, along or across, and within or over such limits of the highway right of way as indicated by the location map attached hereto. NOW, THEREFORE, in consideration of the covenants and acknowledgements herein contained, the parties mutually agree as follows: It is agreed that joint usage for both highway and utility purposes will be made of the area within the highway right of way limits as such area is defined and to the extent indicated on the aforementioned plans or sketches. Nothing in this Acknowledgement shall serve to modify or extinguish any compensable property interest vested in the Utility within the above described area. If the facilities shown in the aforementioned plans need to be altered or modified or new facilities constructed to either accommodate the proposed highway improvements or as part of Utility's future proposed changes to its own facilities, Utility agrees to notify TxDOT at least 30 days prior thereto, and to furnish necessary plans showing location and type of construction, unless an emergency situation occurs and immediate action is required. If an emergency situation occurs and immediate action is required, Utility agrees to notify TxDOT promptly. If such alteration, modification or new construction is in conflict with the current highway or planned future highway improvements, or could endanger the traveling public using said highway, TxDOT shall have the right, after receipt of such notice, to prescribe such regulations as necessary for the protection of the highway facility and the traveling public using said highway. Such regulations shall not extend, however, to requiring the placement of intended overhead lines underground or the routing of any lines outside of the area of joint usage above described. If Utility's facilities are located along a controlled access highway, Utility agrees that ingress and egress for servicing its facilities will be limited to frontage roads where provided, nearby or adjacent public roads and streets, or trails along or near the highway right of way lines which only connect to an intersecting road. Entry may be made to the outer portion of the highway right of way from any one or all access points. Where supports, manholes or other appurtenances of the Utility's facilities are located in medians or interchange areas, access from the through - traffic roadways or ramps will be allowed by permit issued by the State to the Utility setting forth the conditions for policing and other controls to protect highway users. In an emergency situation, if the means of access or service operations as herein provided will not permit emergency repairs as required for the safety and welfare of the public, the Utility shall have a temporary right of access to and from the through - traffic roadways and ramps as necessary to accomplish the required repairs, provided TxDOT is notified immediately when such repairs are initiated and adequate provision is made by Utility for the convenience and safety of highway traffic. Except as expressly provided herein, the Utility's rights of access to the through - traffic roadways and /or ramps shall be subject to the same rules and regulations as apply to the general public. Ir�i dal Date Utility Form ROW -U- JUAA -DA (Rev. 11/12) Page 2 of 2 If Utility's facilities are located along a non - controlled access highway, the Utility's rights of ingress and egress to the through - traffic roadways and /or ramps are subject to the same rules and regulations as apply to the general public. Participation in actual costs incurred by the Utility for any future adjustment, removal or relocation of utility facilities required by highway construction shall be in accordance with applicable laws of the State of Texas. It is expressly understood that Utility conducts the new installation, adjustment, removal, and /or relocation at its own risk, and that TxDOT makes no warranties or representations regarding the existence or location of utilities currently within its right of way. The Utility and the State, by execution of this Acknowledgement , do not waive or relinquish any right that they may have under the law. The signatories to this Acknowledgement warrant that each has the authority to enter into this Acknowledgement on behalf of the party represented. IN WITNESS WHEREOF, the parties hereto have affixed their signatures. Owner: Cif of Denton Natie of Utility w.. By: i Ae/thorized Sip /ialt e Print or Type Name Title: ~,� a_ " "s bwM... ........................... Date: Initial Date Utility The State of Texas Executed and approved for the Texas Transportation Commission for the purpose and effect of activating and /or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By: Date: Donald C. Toner, Jr. SRMA Director — Strategic Projects Right of Way Strategic Projects Division Texas Department of Transportation Statement of Work U -48 Not Applicable Developer Managed Agreement AGL will complete work under this PUAA Form ROW -U -1A Rev. 3/2004 Replaces Form D -15 -U1 GSD -EPC Page 1 of 2 AFFIDAVIT (for Utility Owner) U- No.35E -U- 0503 -002 THE STATE OF TEXAS § District: Dallas § County: Denton COUNTY OF DENTON § Federal Project No.: IM 0356 (438) ROW CSJ No.: 0196 -01 -100, 0195 -03 -072, 0195 -03 -080 & 0195 -03 -074 Highway No.: IH 35E (To be filled in by State) BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared George C. Campbell of the City of Denton, ( "Utility ") who after being by me duly sworn upon his /her oath deposes and says as follows: "I, am over the age of 18 years and am fully competent to testify to the matters set forth in this Affidavit. I have personal knowledge of all facts and swear that such facts are true and correct. [legal description of land] 2. [facts indicating affiant's familiarity with subject land, including inspection and surveys] 3. [facts attesting to ownership, including claims through deeds, etc.] 4. [facts showing use of property] 5. ; [facts showing nature and state of repair of enclosures or fencing] 6. [facts showing continuous possession for statutory period]. Further affiant sayeth not." Signature Title City of Denton Company Form ROW -U -1A Rev. 3/2004 Page 2 of 2 Corporate Acknowledgment State of Texas County of Denton This instrument was acknowledged before me on by of , a corporation, on behalf of said corporation, Notary Public's Signature Notice of Confidentiality Rights: If you are a natural person, you may remove or strike any of the following information from this instrument before it is filed for record in the public records: your Social Security Number or your Driver's License Number. Form ROW -N -30 (Rev. 07/11) Page 1 of 2 OF TEXAS OF DENTON of the County of and in consideraG orr to Grantors. I'etalr "� / ,'�' plied, and l.rrcvo "'� the State and to that certain tract or parcel,, particularly described in E hibi , Type in District descr QUITCLAIM DEED § ROW CSJ: 0196-01-100,0195-03-072,0195- 03 -080 & 0195 -03 -074 § KNOW ALL MEN BY THESE PRESENTS: P " fate of Texas, hereinafter referred to as Grantors, whether one or sum of Dollars ($ ) and other good and valuable pail lay le State of Texas, acting by and through the Texas wipt o %,' h is hereby acknowledged, and for which no lien is h / ; d and do by these presents Bargain, Sell, Release �wtors right, title, interest, claim and demand in srtrrat�e County of Denton, State of Texas, more " clterl her,eto l rr�wcorporated herein for any and all purposes. here. TO HAVE AND TO 110IJ for said purposes together with all appurtenances thereto in any manner belorij# #,�J,/aid State IN WITNESS WHEREOF, this i lar the rights, privileges, and of * N30* Form ROW-N-30 (Rev. 07111) Page 2 of 2 = M � A 0=1 VK$I a RZM MOO This instrument mW cdWdA*tic me on by of Texas tv of Denton was on M corporation, on behalf of said Acknowledgement Notary Public's Signature Acknowledgment m F , � � � +',t�. �� � i � t i DE i�[ ,� M [ N v� �i. 1° � � E tl if � I r i �; � � I � I r� ��: qt4. +i 6'��� s i I j ai, �� ' � h.. ,�� o�� , � I� �_� __ � _ �''+ {� � � '� � � , s� � �,: '� �, �� s i��, �. � � u ra ��� °� i'W �� �d ^ 4r� r „� � �g 4 � � � W° �� �� � �� � i� � �, '{ � � �� d �� � �'� „�����w � i� �� u� �� !�� y� . .... 1 we . � { (� If} {\ � [( \ } •. � : a�/ � \\ \ r lj k; r� : � � �^ � » ^� [ .... .. ... \ © ^ ; . � . ` ^ / ^ ( « °^ � � \. } \~ _ ~ ` � � \ � >� ? �� ^� ^ . ` . � � / . . � ��� §« � . � � �� � � \ \ \ � \ \ � � / \ ' � � \ . � � ( \ . } � : 6 , � , � \ \ . ; . § § \ � � � \ « � � [ )� . � ' ( \ i � \ }} � � { {� � i /} .. . � � .� /\ � � �� °� � \ «�� � � � . �� / }�� � < . � \ ,J \ \y.� � � � ;. \ 2 \ \ \ \\ � � � )� �.. \� �( � :� .. �; . �/ � {\ ,� I �. �� : . /` ' � <t . ' /: \ ! . \{ �� \ . }� ' � � \ � \� / � � (} � . .� / City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -744, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Legal Department CM/ ACM: Anita Burgess, City Attorney Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, repealing Ordinance No. 2013 -248 and enacting a new ordinance relating to planning and development fees as it concerns: gas well drilling and production in the City of Denton and its extraterritorial jurisdiction; road damage remediation fee calculations due to damage to City of Denton roadways from gas well drilling and production activities in the city; assessment of penalties and interest; and setting an effective date. BACKGROUND On September 4, 2001, the City of Denton adopted Ordinance No. 2001 -316 to amended Ordinance No. 2000- 098 by adding a fee to the Development Review Fee Schedule for Development Plats for Gas Extraction. On February 5, 2002, the City combined the gas well plat fee into the Development Review Fee Schedule by adopting Ordinance No. 2002 -041. The Development Review Fee Schedule was further amended in 2004 via Ordinance No. 2004 -060; however, the gas well related fees were unchanged. On September 6, 2005, under Ordinance No. 2005 -237, the City adopted new gas well related fees for Gas Well Plat, Amendment to a Gas Well Plat, Watershed Protection Permit, Gas Well Inspection Fee, and Tree Mitigation. While the City adopted two additional amendments to the Development Review Fee Schedule in 2008 (Ord. No. 2008 -296) and 2009 (Ord. No. 2009 -188), the gas well related fees were not modified until the City adopted Ordinance No. 2010- 183 on August 2, 2010. Ordinance No. 2010 -183 repealed Section 4 of Ordinance No. 2010 -181 and set planning and development fees relating to gas well drilling and production in the City of Denton and its Extraterritorial Jurisdiction (ETJ). After the passage of Ordinance No. 2010 -183, the City contracted with a third -party company to give further consideration to a cost of services analysis supporting the gas well related fee schedule. The third -party company recommended several fee amendments that were adopted by the City on June 7, 2011 under Ordinance No. 2011 -100. Since the adoption of Ordinance No. 2011 -100, the City established the Gas Well Inspections Division to perform gas well permitting, annual inspection services, and other services and overhead related to the City's oversight of gas well drilling and production activities. In addition, on January 15, 2013, the City adopted comprehensive changes to the Gas Well Drilling and Production Ordinance. Given these changes, the City again utilized a third -party consultant to perform a comprehensive review and analysis of the gas well related Fee Schedule. This second analysis resulted in the adoption of Ordinance No. 2013 -248 on September 17, 2013. Since adopting Ord. No. 2013 -248, the City adopted additional changes to the Gas Well Drilling and Production Ordinance. On August 4, 2015, the City City of Denton Page 1 of 3 Printed on 8/13/2015 File #: ID 15 -744, Version: 1 adopted comprehensive changes to the Gas Well Drilling and Production Ordinance, via Ordinance No. 2015- 233, in order to comply with HB 40 (Texas Natural Resources Code, Sec. 81.0523) enacted by the Texas Legislature on May 18, 2015. As a result of Ordinance No. 2015 -233, the corresponding fee schedule should be harmonized with the new ordinance. Several changes to the Development Review Fee Schedule are recommended in Exhibit 1. The first change proposes an incentive to gas well operators to apply for a new Gas Well Development Site Plan within a short period of time after the effective date of this Ordinance. The proposal is to reduce the currently studied fee amounts by 90 percent for 180 days. Operators are more likely to apply for a new Gas Well Development Site Plan with this financial incentive and the City would benefit by enabling new Gas Well Development Site Plans to replace a multitude of older Gas Well Development Plats. The second series of proposed changes would modify the current fee schedule with two minor clarification. The first clarification is to identify that the Erosion and Sediment Control Plan Review is performed in conjunction with the Gas Well Development Site Plan for the entire site and not well -by -well. To achieve the goal to clarify this review, the Initial Gas Well Inspections fee was moved from the first section to the section containing fees charged per each application and revised to indicate that the $1,620 inspection fee is required per each gas well permit application. The second modification splits the rows for Gas Well Development Site Plan and Gas Well Development Plat amendments into two separate entries. The old ordinance combined these two and the separation should add some clarity. Another recommended change would incentivize gas well Operators to locate multiple wells on each Drilling and Production Site by discounting the per -well fee assessed under the Annual Inspection and Administrative Review program. The current Annual Inspection and Administrative Review fee assesses the charge for each well, whether the well is singularly located on its own Drilling and Production Site or is co- located with multiple wells on a shared Drilling and Production Site. To incentivize Operators to drill multiple wells and possibly plug older, single -well sites, the annual fee charge would be reduced for each well located on a multi - well Drilling and Production Site. In addition, the proposal is to change the assessment of the ETJ annual inspection fee to also charge the amount per Drilling and Production Site and not per individual well. The City of Denton inspects approximately 158 Drilling and Production Sites located in the ETJ and those sites contain approximately 220 wells. Under this fee change proposal, the number of Annual Inspection fees invoiced would decrease approximately 28 percent. While the amount of staff time devoted to ETJ on -site inspections would not change, the amount of time necessary to log inspection results and then generate and mail invoices would also be decreased. The decrease in staff time devoted to inspection logging and invoicing will increase if the next recommended change is also enacted. The fourth amendment to the Development Review Fee Schedule is the ability to cover a portion of the administrative costs of collecting past due balances. A penalty and interest (P &I) calculation is included in Exhibit 1. Collecting P &I requires the City to invoice Annual Inspections on a monthly basis, versus the previous annual invoicing schedule and current bi- annual invoicing schedule. The increase in staff time necessary to generate and mail monthly invoices could be off -set by the City's ability to assess the ETJ Annual Inspection fees per Drilling and Production Site instead of the current per well basis. The final proposed amendment would continue the current road damage remediation calculation formula and associated fee. The administration of the fee, however, would be established by Ordinance and no longer by an Agreement. The Road Remediation Fee will be due and owing at the time an Operator provides notice to the City of Denton of their intent to perform any applicable activities specific in Ordinance No. 2015 -233. City of Denton Page 2 of 3 Printed on 8/13/2015 File #: ID 15 -744, Version: 1 RECOMMENDATION Staff recommends APPROVAL of a new Development Review Fee Schedule to supersede and repeal Ordinance No. 2013 -248. EXHIBITS 1. Planning Development Fee Ordinance Respectfully submitted: Aimee Bissett Planning & Development Director Prepared by: Darren Groth, AICP, CPM, REP Manager, Gas Well Inspections Division City of Denton Page 3 of 3 Printed on 8/13/2015 s:Alegal\our documents \gas well documents \15 \planning & development fee ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REPEALING ORDINANCE NO. 2013 -248 AND ENACTING A NEW ORDINANCE RELATING TO PLANNING AND DEVELOPMENT FEES AS IT CONCERNS: GAS WELL DRILLING AND PRODUCTION IN THE CITY OF DENTON AND ITS EXTRATERRITORIAL JURISDICTION; ROAD DAMAGE REMEDIATION FEE CALCULATIONS DUE TO DAMAGE TO CITY OF DENTON ROADWAYS FROM GAS WELL DRILLING; ASSESSMENT OF PENALTIES AND INTEREST; 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 enacted Ordinance 2015 -233 on August 4, 2015, thereby amending the City's regulations relating to gas well drilling in the City in order to comply with H13 40 (Texas Natural Resources Code, Sec. 81.0523) enacted by the Texas Legislature on May 18, 2015; and WHEREAS, the City Council deems it prudent to harmonize Ordinance 2015 -233 and the assessment of fees associated with gas well drilling and production and associated activities; and WHEREAS, all fees assessed under this Ordinance have been comprehensively reviewed, are fair and reasonable, and do not exceed the reasonable cost to the City in providing the scheduled service; and WHEREAS, the City Council deems it in the best interest of the City to allow a short period of fee reduction in order to encourage gas well operators to file Site Plans on those gas well drilling and production sites existent in the City as of the effective date of this Ordinance; 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 Planning and Development Fee Schedule for gas well production is set forth in Exhibit "A ", which Exhibit is incorporated herein as though set forth in full, and is hereby adopted. SECTION 3. The Road Damage Remediation Fee Calculation Formula, which appears and is based on the road damage remediation calculations set forth in Exhibit "B" for gas well drilling and production, which Exhibit is incorporated herein as though set forth in full, is hereby adopted. SECTION 4. Planning and Development fees are due and owing at the time of application and delinquent if not paid at that time. No permit will issue until payment is made. Inspection fees are due and owing on or before the 30`" day following the end of the month when any inspection(s) are performed and 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 Ordinance 2015 -233; or, in the event of failure to notice the City of activities specified in Ordinance 2015 -233, 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 of any fees assessed. 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 5. Ordinance 2013 -248 is hereby superseded and repealed. SECTION 6. This ordinance shall become effective immediately. PASSED AND APPROVED this, the day of , 2015. CHRIS WATTS, MAYOR Page 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r' 1' a, BY: Page 3 Exhibit A Planning and Development Fee Schedule Gas Well SUP Review (includes Engineering Fee) $12,840 $1,300 Gas Well Development Site Plan $7,575 $760 Additional Fee for Engineering Review $390 $390 Additional Fee for Full Landscape Plan Review (includes initial and one follow $350 $0 up inspection) Additional Fee for Second Follow -Up inspection (third site visit) for Full $265 $0 Landscape Plan Review Additional Fee for Full Tree Mitigation Review (includes initial and one follow $240 $0 up inspection) Additional Fee for Second Follow -Up Inspection (third site visit) for Full Tree $165 $0 Mitigation Review Additional Fee for Erosion and Sediment Control Plan Review (includes initial and one follow -up inspection), which fee is included as part of the Initial Gas $285 $285 Well Inspections category below Additional Fee for Second Follow -Up Inspection (third site visit) for Erosion $130 $130 and Sediment Control Plan Review Gas Well Development Plat Review $5,215 $520 The same Additional Fee(s) listed under the Gas Well Development Site Plan Varies Varies catergory above shall be charged, if applicable Gas Well Development Site Plan Amendment $7,575 $7,575 The same Additional Fee(s) listed under the Gas Well Development Site Plan Varies Varies catergory above shall be charged, if applicable Gas Well Development Plat Amendment $5,215 $5,215 The same Additional Fee(s) listed under the Gas Well Development Site Plan Varies Varies catergory above shall be charged, if applicable The following fees shall be charged annually Annual Inspection and Administration Fee (within City Limits) (covers two annual inspections) per well located on the same Drilling and Production Site 1 well $1,055 $1,055 2 -5 wells $955 $955 6 -10 wells $855 $855 More than 10 wells $755 $755 Annual Inspection and Administration Fee (within ET1) (covers two annual $395 $395 inspections) per each Driling and Production Site Annual Erosion and Sedminent Control Inspection (covers initial and one follow- $285 $285 up inspection) per each Drilling and Production Site Additional Fee for each inspection beyond the initial and one follow -up $130 $130 Annual Erosion and Sediment Control Inspection The following fees shall be charged per each application Transfer of Operation $315 $315 Watershed Protection Permit (WPP) $195 $195 Gas Well Permit (GWP) $500 $500 Initial Gas Well Inspections , required for each GWP $1,620 $1,620 Road Type I II III IV Road Type I I I III IV Road Type I 11 III IV Exhibit B ROAD DAMAGE REMEDIATION CALCULATION Construction Cost/Lane Mile 2013 $67,500 $128,503 $150,920 $275,000 Construction Cost/Lane Mile 2013 $67,500 $128,503 $150,920 $275,000 Construction Cost/Lane Mile 2013 $67,500 $128,503 $150,920 $275,000 Construction Road CosULane Mile Type 2013 $67,500 II $128,503 III $150,920 IV $275,000 Road Type I II IV Access Lane Miles Per Plat Initial Drilling and Fracturing - Piped Water AASHTO Assessment New Design Life Consumptive Consumptive ESAL Use (ESAL) Use 1,000 719.82 71.982% 13,000 719.82 5.537% 250,000 719.82 0.288% 1,600,000 719.82 0.045% Initial Drilling and Fracturing - Hauled Water AASHTO Design Life Consumptive Consumptive ESAL Use (ESAL) Use 1,000 1567.52 156.752% 13,000 1567.52 12.058% 250,000 1567.52 0. 627% 1,600,000 1567.52 0.098% Fracturing - Piped Water AASHTO Design Life Consumptive Consumptive ESAL Use (ESAL) Use 1,000 315.57 31.557% '13,000 315.57 2.217% 250,000 315.57 0.126% 1,600,000 315.57 0.073% Fracturing - Hauled Water AASHTO Design Life Consumptive Consumptive ESAL Use (ESAL) Use 1,000 1163.27 116.327% 13,000 1163.27 8.948% 250,000 1163.27 0.465% 1,600,000 1163.27 0.073% Fee Calculation t-o Assessment Per Lane Mile x x x x Assessment Road Damage Assessment Per Lane Mile Percentage Per Lane Mile $48,588 55.097% $37,190 $7,115 4.238% $5,446 $435 0.220% $332 $124 0.034% $94 Assessment Road Damage Assessment Per Lane Mile Percentage Per Lane Mile $105,808 139.867% $94,410 $15,495 10.759% $13,826 $946 0.559% $844 $270 0.087% $239 Assessment Road Damag Assessment Per Lane Mile Percentage Per Lane Mile $21,301 14.672% $9,904 $2,987 1.129% $1,451 1 $190 0.059% $89 $201 0.009°/ $25 Assessment Road Damage Assessment Per Lane Mile Percentage Per Lane Mile $78,521 99.442% $67,123 $11,498 7.649% $9,829 $702 0.398% $601 $201 0.0620% $171 Assessment NOTES: 1. Road Type I is six inch (6 ") flex base with chip seal; halt overlay; 2. Road Type 11 is six inch (6 ") flex base with chip seal and a two inch (2") asphalt 3. Road Type III is six inch (6 ") treated subgrade with six inches (6 ") of asphalt; 4. Road Type IV is six inch (6 ") treated subgrade with eight inches (8 ") of asphalt; 5. Minimum charge for Road Damage Remediation is $7,500 per well; 6. Maximum charge for Road Damage Remediation is up to the maximum Assessment Per Lane Mile per well as shown above. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -747, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of July 21, 2015. City of Denton Page 1 of 1 Printed on 8/13/2015 CITY OF DENTON CITY COUNCIL MINUTES July 21, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, July 21, 2015 at 11:00 a.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Briggs, Mayor Pro Tern Gregory, Council Member Hawkins, Council Member Johnson, Council Member Roden, Council Member Wazny and Mayor Watts. ABSENT: None. 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 July 21, 2015. Council Member Hawkins asked for an overview of how the traffic flow would work in regards to Consent Agenda R. Noreen Housewright, Senior Engineer, presented information on how project started. UNT requested to keep Highland one -way and remove parking from Avenue D to Highland. UNT also wanted two -way traffic at the Coliseum. These changes could accommodate those requests. Council Member Wazny asked that Consent Agenda Q be pulled for separate consideration. Council Member Gregory asked about Consent Agenda C in regards to any potential conflicts if a home were in a historic preservation district. Rodney Patterson, Building Official, stated that there were specific designations for properties in a historic designation. There were some exceptions for remodels plus provisions which would minimize any conflicts. Mayor Watts stated that one provision in the code for ventilation required installing additional mechanical to bring fresh air into the home because the house had to be so tight due to the Energy Code. He had a problem with that as it seemed in opposition to each other. Several builders expressed concern that it would prevent them from providing affordable new home construction. Council Member Hawkins agreed and asked what the percentage was the City was trying to reach above the Energy Code. Patterson stated that currently it was 4% above the base line of the city ordinance. The fresh air requirement was not an Energy Code requirement but rather fell under indoor air requirements. Council Member Wazny stated that she would like to have contractors present when they discussed this provision. She felt that it may also be directed to carbon monoxide poisoning. Mayor Watts stated that he understood that Denton was in a non - attainment area and that the State adopted certain energy codes versions. Because of that there was very little movement for remodeling due to those requirements. City of Denton City Council Minutes July 21, 2015 Page 2 Patterson stated that even a COG amendment had to be presented to the State to be approved to be an equivalent before COG could publish those documents. If Denton wanted its own amendment, it would have to be submitted to A &M for approval. Mayor Watts commented on the amount of dollars for the contract related to Consent Agenda S. City Attorney Burgess noted that the contract was related to the NRG lawsuit. Mayor Watts suggested moving the citizen reports currently at the end of meeting ahead to the start of the meeting. Council was in agreement with that change. Mayor Watts also noted that Work Session C would be held until later in the meeting. 3. Work Session Reports A. ID 15 -536 Receive a report, hold a discussion, and give staff direction regarding the results of the 2015 citizen and business surveys. Alison Ream, Administrative Services Manager, stated that National Research Center (NRC) had conducted two separate surveys. The National Citizen Survey (NCS) centered on a community livability report while the National Business Survey (NBS) centered on a business climate report. She introduced Damema Mann from the National Research Center who presented the results of the two surveys. Mann stated that the NCS and NBS looked at community characteristics and governance. NCS looked at citizen participation and NBS looked at business climate and workforce. Results were focused around eight topics. She presented the study methods for both the citizen and business surveys as well as the National Benchmark Comparisons. The Community Survey had key focus areas for the upcoming two years which centered on safety and the economy. The Business Survey's key focus areas were mobility and economy. Key Finding 41 indicated that Denton residents enjoyed a high quality of life and Denton business owners and managers valued the community as a place to do business. Key Finding 42 indicated that the economy was important to residents and business owners and ratings overall were positive. Key Finding 43 indicated that mobility ratings varied and represented an area for opportunity in Denton. Key Finding 44 indicated that residents and business owners were pleased with Denton communications and customer service by the City. Highlights and conclusions indicated that (1) the quality of life and Denton as a place to live and do business received positive ratings, (2) economy was important and ratings were positive, (3) mobility represented an area of opportunity and (4) survey respondents were pleased with Denton communications. Mayor Pro Tem Gregory questioned how often a survey should be done. Mann stated that they recommend every two years Council Member Wazny asked about the cost of survey. City of Denton City Council Minutes July 21, 2015 Page 3 Ream stated that it was $40,000 for both surveys. Council Member Wazny asked if the city's website had been tried for responses. She had several requests from citizens who wanted to do it on the website. Ream stated that they wanted results based on demographics that applied to the whole city and not self - selecting. A self - select could be considered next time but was not as representative a sample and was not as random. Council Member Roden requested a copy of the prior survey for comparison and what was the City's follow -up. Ream stated that staff could provide the last results and that one of the reports was a comparison of the two surveys in broad terms. Bryan Langley, Assistant City Manager, stated that a key outcome from the prior survey was streets and became the basis for the Strategic Plan. B. DCA15 -0002a Receive a report and hold discussion regarding adding "Craft Alcohol Production" to the Denton Development Code. Aimee Bissett, Interim Director of Planning and Development, stated that this was a proposed addition to the Denton Development Code (DDC) to allow for craft alcohol production. There had been recent interest from business owners to locate microbreweries in the Downtown area. Currently there was no provision for that in the DDC and the proposal was to add craft alcohol production to the list of uses in the DDC. The current classification for this type of business was light manufacturing which was not permitted in Downtown as a primary use but was permitted if an accessory to a restaurant or retail. The proposal would be to permit microbreweries Downtown without allowing all light manufacturing, require onsite consumption at least Downtown, maintain an appropriate scale for Downtown and not affect restaurants that brew beer as an accessory use. The definitions, zoning districts, and comparisons with the Dallas and Denton proposals were reviewed. The Planning and Zoning Commission recommended approval as did staff. Council discussed the limitation of the size of the building to 10,000 square feet, the area of the Downtown for the microbrewery locations, conditions that might be added to a SUP such as size of the building, and time of deliveries. Mayor Watts questioned if there could be a circumstance when a SUP would not be allowed. City Attorney Burgess stated that if there were no conditions for the SUP, it could be denied. Traditionally there was a presumption that the SUP would be allowed but with conditions. The City Council convened in a Closed Meeting at 12:42 p.m.to consider the specific items listed below under the Closed Meeting section of this agenda. City of Denton City Council Minutes July 21, 2015 Page 4 1. Closed Meeting: A. ID 15 -534 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding real estate matters related to the site selection for the DME Hickory substation, presently located at the intersection of West Hickory and South Bonnie Brae in the City of Denton, Texas, and concerning certain real property within the immediate vicinity, specifically Lots 1, 2, and 3 of the Oak Street Terrace Addition, and the potential acquisition of real property interests. Consultation with the City's attorneys regarding legal issues associated with the condemnation or acquisition of the real property interests where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Hickory Substation) [ID 15 -542, 15 -543, 15 -544] B. ID 15 -558 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 Easement Grant and Abandonment Agreement of certain real property interests located in the Jeremiah Fisher Survey, Abstract No. 421, City of Denton, Denton County, Texas, and generally located in the 2200 Block of E. Ryan Road, west of the Ryan Road - Teasley intersection. 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 West Lift Station Upgrade)[ID 15 -559] C. ID 15 -560 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 acquisition of real property interests situated in the S. McCracken Survey Abstract Number 417, City of Denton, Denton County, Texas (located generally within the 2200 block of E. Sherman Drive). Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Fire Station No 4 Rebuild) [ID 15 -561] City of Denton City Council Minutes July 21, 2015 Page 5 D. ID 15 -527 Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations regarding Real Property - Under Texas Government Code, Section 551.072. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the potential sale of real property interests owned by the City of Denton located in the G. Walker Survey, Abstract 1330, and Lot 1, Block 1, Lake Dallas Storage Addition, both in Denton County, Texas, and located generally south of F. M. Highway 426 (East McKinney Street) between Mayhill Road on the west and South Trinity Rd. on the east. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Atmos Lake Dallas Storage Facility). Council returned to the Work Session to consider Item 3.C. C. ID 15 -569 Receive a report, hold a discussion, and provide staff direction regarding promotion and advertising functions currently being performed by the Convention and Visitors Bureau (CVB). Bryan Langley, Assistant City Manager, stated that the promotion and advertising functions for the City were performed by the CVB. He reviewed the background of hotel occupancy taxes and the CVB funding background. As a result of increasing financial commitments to the CVB, the HOT Committee recommended a work session discussion on the CVB functions and in particular the advantages and disadvantages of contracting with CVBG versus providing functions through an in -house operation. Historically Denton contracted with the CVB to perform the promotion and advertising functions for the City; to promote tourism, not economic development or business retention. Advantages of a CVB contract were (1) the CVB was not governed by state /city procurement policies and (2) staff was solely focused on the visitor industry. Disadvantages included a diminished level of control for the City. Advantages of an in -house Visitor Program included (1) direct accountability to the funding source, (2) utilized existing resources and systems within the city, (3) interaction and coordination with other internal departments, (4) more control over activities, and (5) long term organizational stability. Disadvantages of an in -house Visitor Program included (1) it would be governed by state /city procurement policies and (2) adherence to city entertainment policies which could be amended by the City Council as needed such as alcohol usage at City events. Each type of structure could be successful. Staff had surveyed fifteen cities with six having in- house programs and nine utilizing a CVB contract. Staff was asking for direction on how to proceed and /or whether additional information was needed. Council Member Johnson noted that conversations concerning the Downtown Visitor Center and the convention center project should not be confused. As the City grew, it made sense to review whether to continue in the same practice or to do it differently. City of Denton City Council Minutes July 21, 2015 Page 6 Mayor Watts felt it would be important to have up -to -date information on the stewardship of funds. With other cities, most funds went to a CVB arrangement versus Denton which also funded festivals, etc. Bob Moses, Chair of the Advisory Board of the CVB, stated that he had worked with the CVB for about 17 years. His thought was that it had worked smoothly and worked well and should not be changed at this time. Address any problems rather than change the process. Council Member Johnson suggested having a plan for the Visitor Center and to think through the structure so that there wasn't a duplication of effort and funding. Clearly defined roles and responsibilities were needed. Council Member Roden asked if the need for additional staff for the Downtown facility was part of the funding discussion. Langley stated correct that there would be three positions. Council Member Wazny felt that the type of convention center had an effect on the size of the staff. A city owned facility would require a larger staff but Denton's proposed center would be privately owned with not as large of staff needed. What was decided at this time might be different in the future. Council Member Roden asked about the funding resources for staffing at a convention center and whether the funding would come from other sources or if the idea was that the additional staffing for the convention center would also be covered by HOT funds. Council Member Johnson stated that the HOT Committee did not have a conversation to tap General Fund dollars for additional staffing. The conversation was not to move the CVB from the Chamber back to the City but rather a conversation with the entire Council on the growth Chuck Carpenter, President - Chamber of Commerce, stated that this model of the CVB with the City was unique and worked very well. Council discussed with CVB representatives the overseeing of the funding provided by the City to the CVB, how this item was a good review of the procedures of the CVB, and the reaffirming of the good working relationship between the CVB and the City. Council requested periodic updates from the CVB to go to the Council. Council reconvened in Closed Meeting at 2:00 p.m. to consider the following items: E. ID 15 -565 Consultation with Attorneys - 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 economic development incentives for a business prospective in the Cole Ranch City of Denton City Council Minutes July 21, 2015 Page 7 Development. This discussion shall include commercial and financial information the City Council may receive from the business owners which the City 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. Also hold a discussion with the City's attorneys on the referenced topic 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. F. ID 15 -566 Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rule making power as opposed to purely advisory powers, which includes without limitation the Health and Building Standards Commission, the Historic Landmark Commission, the Planning and Zoning Commission, and the Zoning Board of Adjustment. G. ID 15 -570 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 George P. Bush, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -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, 215 E. McKinney Street, Denton, Texas. Council Member Briggs left the meeting. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. City of Denton City Council Minutes July 21, 2015 Page 8 2. PROCLAMATIONS /PRESENTATIONS A. ID 15 -514 Parks Foundation presentation of a donation from the Denton Area Teachers Credit Union to the City of Denton for the Eureka 2 project. The Parks Foundation received a check from DACTU for $100,000 for the Eureka 2 project. B. ID 15 -582 Resolution of Appreciation for Linda Holley Mayor Watts read the Resolution of Appreciation for Linda Holley. Mayor Pro Tem Gregory motioned, Council Member Roden seconded to approve the Resolution of Appreciation. On roll call vote, Mayor Pro Tem Gregory "aye ", Council Member Hawkins "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Council Member Wazny "aye ", and Mayor Watts "aye ". Motion carried unanimously. 3. CITIZEN REPORTS Mayor Watts stated that the four individuals scheduled to speak at the end of meeting would be moved to the start of the meeting so they would not have to wait until the end of the meeting for their reports. A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: A. ID 15 -541 Monica Jones regarding a complaint on Animal Control. Ms. Jones was not present at the meeting. B. ID 15 -572 Jerry Yensan regarding the City's interpretation of a boundary on a gas well plat. Mr. Yensan read a statement regarding his survey of a piece of property on Windsor Drive at Bonnie Brae. There was a gas well located on the site which resulted in a disagreement regarding the reverse setback distance from the well site to a proposed church development. C. ID 15 -574 Luisa Feliz translating for Bolivar Diaz regarding interpretation of gas well boundaries. Ms. Feliz read a statement from Mr. Diaz regarding the building of a new church on property located at Windsor and Bonnie Brae. That site had a gas well located near it. However, they had been unable to obtain a building permit for the church due to the distance requirements regarding the well site. A. ID 15 -537 Willie Hudspeth regarding City Hall. City of Denton City Council Minutes July 21, 2015 Page 9 Mr. Hudspeth felt that the administration was not onboard with the citizens and that the citizens were frustrated with the administration. Rules should help the citizens and not hurt them. People were dropping off items at his property which were not his and Code Enforcement kept sending him letters regarding those items but they were not his. B. ID 15 -573 Kent Key regarding gas well plats. Mr. Key felt that there were problems in the City that citizens needed help with. The gas well plats needed to be addressed. Large homes were needed in Denton but could not be developed due to the gas well regulations plus the flood plain regulations. Citizens needed help to understand the problems associated with the gas well regulations. Some regulations needed to be changed in order to allow for development. C. ID 15 -575 A.C. Adam regarding buffer zone area around gas wells. Mr. Adam echoed the sentiments of Mr. Yensan and Mr. Key. He felt that development of the area would be beneficial to the City. He also felt a reasonable distance from the well head to the development would be better than the current regulations. D. ID 15 -586 Nell Yeldell regarding weeds, water and health hazards at 516 E. Prairie. Ms. Yeldell was not present at the meeting. 4. CONSENT AGENDA Council Member Hawkins motioned, Council Member Johnson seconded to adopt the Consent Agenda and accompanying ordinances and resolutions with the exception of Item Q which would be considered individually. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No 2015 -197 A. ID 15 -465 Consider adoption of an ordinance amending Chapter 29 of the Code of the City of Denton, Texas, to provide for the adoption of the International Fire Code, 2012 Edition; providing for amendments thereto; re- establishing permit fees; providing for a penalty in the amount of $2,000.00 for violations thereof; providing for severability; repealing all ordinances in conflict therewith; and providing for an effective date. Ordinance No. 2015 -198 B. ID 15 -476 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 the City of Denton, (the "City ") and Jeffrey Craig Cook, individually and as Independent Administrator of the Estate of Herschell D. Cook, deceased (referred to collectively herein as "Seller "), City of Denton City Council Minutes July 21, 2015 Page 10 regarding the sale and purchase of fee simple to a tract of land lying and being situated in the City and County of Denton, State of Texas, and being a part of Lot No. Three (3), Block Twenty (20) of the Original Town of Denton, an addition to the City of Denton, Denton County, Texas, located generally in the 100 block of Industrial Street in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, (the "Property Interests "), for the purchase price of One Hundred Thirty Seven Thousand Five Hundred Dollars and No /100 ($137,500.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. (Industrial Park Property Acquisition project: Cook) Ordinance No. 2015 -199 C. SI15 -0015 Consider adoption of an ordinance of the City of Denton, Texas 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 providing a penalty for violation; providing for severability; repealing all ordinances in conflict therewith; and providing an effective date. Approved the minutes listed below. D. ID 15 -538 Consider approval of the minutes of May 4, May 5, May 12, May 19, May 26, June 2, June 9 and June 16, 2015. Ordinance No. 2015 -200 E. ID 15 -539 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Greenbelt Alliance of Denton County for the purpose of capital needs; providing for the expenditure of funds; and providing for an effective date. ($800) Ordinance No. 2015 -201 F. ID 15 -540 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Denton Assistance Center, Inc. for funds that will be used for "Serve Denton" Services; Providing for the expenditure of funds; and providing for an effective date. ($1,900) Ordinance No. 2015 -202 G. ID 15 -542 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a contract of sale between the City of Denton, Texas ( "City "), as Buyer, and Serendipity Business Interests, LLC Property ( "Owner ") to acquire fee title to a 0.138 -acre tract situated in the E. Pulchalski Survey, Abstract No. 996, legally described as Lot 2, of Oak Street Terrace Addition, an addition to the City of Denton, Denton County, Texas and more particularly described in Exhibit "1 ", for the purchase price of Ninety Five Thousand Dollars and no cents ($95,000.00), and other valuable consideration, as prescribed in the contract of sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. (Hickory Street DME Substation assemblage City of Denton City Council Minutes July 21, 2015 Page 11 tract: Serendipity Business Interests) Ordinance No. 2015 -203 H. ID 15 -543 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a contract of sale between the City of Denton, Texas ( "City "), as Buyer, and Mankins Property ( "Owner ") to acquire fee title to a 0.138 -acre tract situated in the E. Pulchalski Survey, Abstract No. 996, legally described as Lot 3, of Oak Street Terrace Addition, an addition to the City of Denton, Denton County, Texas and more particularly described in Exhibit "1 ", for the purchase price of One Hundred Fifteen Thousand Dollars and no cents ($115,000.00), and other valuable consideration, as prescribed in the contract of sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. (Hickory Street DME Substation assemblage tract: Mankins Property) Ordinance No. 2015 -204 L ID 15 -544 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a contract of sale between the City of Denton, Texas ( "City "), as Buyer, and Neblett Property ( "Owner ") to acquire fee title to a 0.164 -acre tract situated in the E. Pulchalski Survey, Abstract No. 996, legally described as Lot 1, of Oak Street Terrace Addition, an addition to the City of Denton, Denton County, Texas and more particularly described in Exhibit "1", for the purchase price of One Hundred Forty Five Thousand Dollars and no cents ($145,000.00), and other valuable consideration, as prescribed in the contract of sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. (Hickory Street DME Substation assemblage tract: Neblett Property) Ordinance No. 2015 -205 J. ID 15 -546 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 the design of the Hickory Creek Basin Peak Flow Detention Facility; providing for the expenditure of funds therefor; and providing an effective date (File 5768- awarded to Hazen and Sawyer, P.C. in an amount not -to- exceed $427,368). The Public Utilities Board recommends approval (5 -0). Ordinance No, 2015 -206 K. ID 15 -550 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the construction of a pre -cast security fence for the City of Denton Kings Row Substation; providing for the expenditure of funds therefor; and providing an effective date (RFP 5818- awarded to The Turner Company in the not -to- exceed amount of amount of $340,770.85). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2015 -207 L. ID 15 -551 Consider adoption of an ordinance approving a contract for the supply of decorative paint to color mulch chips for the City of Denton Beneficial Reuse City of Denton City Council Minutes July 21, 2015 Page 12 Division which is only available from a single source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5844- awarded awarded to TH Glennon Company, Inc. in the annual estimated amount of $25,000 for a three (3) year not -to- exceed amount of $75,000). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -208 M. ID 15 -552 Consider adoption of an ordinance approving a contract for the purchase of four (4) utility truck bodies for the City of Denton Wastewater Collections, Electric Operations, Water Distribution, and Traffic Control departments which are available from a single source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5871- awarded to General Body Manufacturing Company in the not -to- exceed amount of $109,171). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2015 -209 N. ID 15 -553 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Electric Utility Overhead Distribution Pole Line Hardware for Transmission Line Under Build for Denton Municipal Electric (DME); and providing an effective date (RFP 5775- awarded to HD Supply in the three (3) year not -to- exceed amount of $1,000,000). Ordinance No. 2 015 -2 10 O. ID 15 -559 Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ( "City ") to execute, for and on behalf of the City, an Easement Grant and Abandonment Agreement ( "Agreement "), by and between the City and DENTON WEST JOINT VENTURE ( "Owner "), providing for (a.) the granting to the City of easement for Lift Station purposes, encumbering 0.127 acre tract; and (b.) the granting to the City of easement for Ingress and Egress purposes, encumbering a 0.052 acre tract; and (c.) the granting to the City of a Street Right -of- Way deed, encumbering a 0.333 acre tract; and (d.) the abandonment ( "Abandonment ") by the City of (i) that certain Sanitary Sewer Easement, from M. K. Buchanan to the City, recorded in Volume 645, Page 79, Deed Records, Denton County, Texas; and (ii) that certain Public Utility Easement, from M. K. Buchanan to the City, recorded in Volume 626, Page 123, Deed Records, Denton County, Texas; (collectively, the "Abandonment Tracts "), all tracts situated in the Jeremiah Fisher Survey, Abstract N0. 421, Denton County, Texas and being generally located at the 2200 block East Ryan Rd.; authorizing the expenditure of funds therefore; making findings; providing a savings clause; and providing an effective date. (Denton West Lift Station Upgrade) (Recommended for approval by PUB 6 -0) Ordinance No. 2015 -211 P. ID 15 -561 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a Contract of Sale, as City of Denton City Council Minutes July 21, 2015 Page 13 attached thereto and made a part thereof as Exhibit "A ", by and between Jason Rose, (the "Owner "), and the City of Denton, Texas, (the "Buyer "), regarding the sale and purchase of fee simple to a 1.227 acre tract, more or less, situated in the S. McCracken Survey, Abstract No. 817, located in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, located generally in the 2100 Block of East Sherman Drive (the "Property Interests "), for the purchase price of One Hundred Sixty Five Thousand Dollars and No Cents ($165,000.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. (Denton Fire Station No. 4 Rebuild Project) Ordinance No. 2015 -213 R. ID 15 -564 Consider adoption of an ordinance concerning the removal of parking and changing of Highland Street, from North Texas Boulevard to Avenue D, from one -way, eastbound, to two -way and the changing of Avenue D, from Maple Street to Highland Street, from two -way to one way, northbound as attached to the ordinance (Exhibit 1) and providing an effective date. The Traffic Safety Commission recommends approval (5 -0). Ordinance No. 2015 -214 S. ID 15 -571 Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a supplemental and amended engagement letter with Lloyd Gosselink Rochelle & Townsend, P.C. for Professional Legal Services relating to the pending litigation entitled the City of Denton, Texas V NRG Power Marketing, LLC; authorizing the expenditure of funds therefor; providing an effective date (File No. 5771 - in the additional amount of not -to- exceed $500,000, aggregating not -to- exceed $595,000). The Public Utilities Board recommends approval (6 -0). Item Q was considered. Ordinance No. 2015 -212 Q. ID 15 -562 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, affirming, Texas, affirming the commitment of the City of Denton, Texas to the North Texas Boulevard Bridge in conjunction with the 35Express project in the amount of $396,372 and authorizing the City Manager, or his designee, to execute a letter of intent between the Texas Department of Transportation, Archer Western Contractors, LLC Granite Construction Company and Lane Construction Company and the University of North Texas to initiate final design; and providing an effective date. Mark Nelson, Director of Transportation, presented details of the project. The North Texas Blvd. bridge was the only bridge that would receive full enhancements on the redesign for the project. Medallions would be designed at the bridge depicting UNT and the city of Denton. The agreement with UNT looked at cost sharing the enhancements to improve safety and aesthetics on the pedestrian walkways. Landscaping would also be done as well as pedestrian light City of Denton City Council Minutes July 21, 2015 Page 14 structures to enhance safety of the area. A design concept was submitted to TxDOT and ACL with a cost estimate of $700,000 with the cost share for the City at $396,000. Council Member Hawkins asked about which accounts the money would be coming from and if COs were being issued. Nelson stated that it was his understanding that the funding proposal to use COs was a typical option to finance the expense. Council Member Wazny stated that she had a problem spending almost $400,000 to make a pretty bridge. She knew that it was an entrance to the City and to UNT but she had to be a good steward of the City's money. Issuing the COs was also a problem as citizens had a problem issuing large sums of money through COs for such expenses. The citizens did not have an opportunity to weigh in on this type of debt. City Manager Campbell stated that there were other options but this was what typically was done. Chuck Springer, Director of Finance, stated that other options might include General Obligation bonds. The debt package had funds for miscellaneous street projects and miscellaneous sidewalk projects. It was still debt and would have the same interest rate as the COs. Other options were to cash fund by one -time funding out of the General Fund balance or fund it through ongoing revenues through the General Fund as another option. One reason to issue debt was so that individuals using the asset paid for the asset. Council Member Roden knew that the project was a combination of different items and was a significant portion of the public art component for the bond issue. The top of the bridge was primarily a safety issue for students crossing over from the dorms on the other side of the highway. The debate was the public art policy and tying it to public streets. Springer stated that part of 2012 bond election for street improvements included $400,000 for public art. That public art money needed to be associated with improvements approved by the voters and needed to be spent on street projects. Council Member Roden felt that the aesthetics issue had been vetted during the 2012 election but the other issue was a safety issue that had been vetted through the Mobility Committee and Council. Council Member Wazny stated that there was a pedestrian bridge over the freeway that would remain. In terms of using the art money it was only $300,000 out of the needed $396,000. She understood the safety issues but was it was still a lot of money. Council Member Johnson stated that he was on the Advisory Committee which felt this would be a good use of the public art money at this time. Much of the cost was for the pedestrian walkway and the barriers to protect the citizens walking in the area. Council Member Hawkins stated that Council had been talking about this project for several years. He felt the partnership with UNT and the intergenerational equity was a good issue. City of Denton City Council Minutes July 21, 2015 Page 15 Mayor Pro Tem Gregory stated that he was satisfied with the amount of opportunity citizens had to speak on the issue. It was more than just aesthetics; it was about connectivity and safe passage going over the highway. Council Member Roden motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", and Mayor Pro Tem Gregory "aye ", Council Member Wazny "nay ". Motion passed with a 5 -1 vote. 5. PUBLIC HEARINGS Ordinance No. 2015 -215 A. Z15 -0012 Hold a public hearing and consider an initial zoning of Neighborhood Residential 1 (NR -1) on approximately 4.495 acres of land generally located approximately 760 feet east of South Trinity Road and 2,600 feet north of East McKinney Street (FM 426). The Planning and Zoning Commission recommends approval (7 -0). Aimee Bissett, Interim Director of Planning and Development, stated that this was an initial zoning case from Rural Zoning to Neighborhood Residential -l. She reviewed the zoning map, future land use map, background of the zoning of the property, and analysis of the surrounding properties. The criteria for approval were reviewed which the proposal met. The Planning and Zoning and staff recommended approval. The Mayor opened the public hearing. Leo Miller, 3091 Swisher, Denton, 76208, spoke in support. The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -216 B. S15-0002 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a Specific Use Permit (SUP) for Multi - Family Dwellings in Neighborhood Residential Mixed Use (NRMU) and Neighborhood Residential Mixed Use 12 (NRMU -12) zoning district and use classifications. The approximately 11.4 acre site is generally located on the south side of McKinney Street (FM 426), approximately 1,000 feet west of Mockingbird Lane; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (7 -0) with conditions. Aimee Bissett, Interim Director of Planning and Development, stated that this was a specific use permit for a multi - family development on McKinney. She presented the location map, current City of Denton City Council Minutes July 21, 2015 Page 16 zoning, future land use map, and original site plan. The applicant revised the site plan to incorporate the recommendations by the Planning and Zoning Commission. The criteria for approval were presented which the proposal met. The Planning and Zoning Commission recommended approval subject to the conditions. The staff recommendation was for approval with the first two conditions. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Hawkins motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance with the conditions recommended by the Planning and Zoning Commission. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -217 C. Z15 -0005 Hold a public hearing and consider adoption of an ordinance to the City of Denton, Texas, amending Ordinance No. 2007 -032 which provided for a zoning change to a Neighborhood Residential 3 (NR -3) zoning district classification and use designation along with an overlay district, in order to modify conditions related to design criteria in the overlay on approximately 31 acres of land generally located on the southwest corner of Hinkle Drive and Windsor Street in the City of Denton, Denton County; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (6 -1), subject to conditions. Aimee Bissett, Interim Director of Planning and Development, stated that this request was to amend an ordinance created in 2007 to facilitate an active adult single family community. The amendment would be to the overlay on the proposal but not an amendment to the base zoning. She presented the location of the proposal indicating that it would not change the underlying zoning district, permitted uses or density. The future land use and surrounding land uses were also reviewed. The overlay conditions from 2007 included (1) the woods along the south and east boundary of the site would be preserved, (2) a perimeter fence with a " wrought" iron appearance, with taller posts topped by a decorative finial at the corner of each lot would be installed along the perimeter of the site, (3) the setback of the fence would be 50' minimum from the existing curb; rows of shrubbery between the fence and sidewalk would be installed to obtain privacy, (4) the distance from the fence and back of sidewalk would be a minimum of 12- feet, (5) the developer, and later an H.O.A., would take responsibility for maintenance and irrigation of the approximately 3 -acre perimeter landscape area, (6) except for glazing, doors, and trim, the exterior of the homes shall be of vitrified clay, brick or stone for all vertical surfaces with a direct load path to the foundation, (7) the following restrictions and conditions shall apply to single- family detached homes - street right -of -way shall be a minimum of 56 feet; parkway width shall be a minimum of 9 feet; sidewalk width shall be a minimum of 5 feet; front yard City of Denton City Council Minutes July 21, 2015 Page 17 setback shall be a minimum of 15 feet; side yard setbacks shall be a minimum of 6 feet; rear yard setback shall be a minimum of 10 feet, except for rear entry garages; rear yard setback shall be a minimum of 20 feet if garages are accessed through the rear of the property; front entry garages shall be setback 12 feet from the front most wall of that unit and (8) three -car garages shall not face the street. With the proposed conditions, the first two criteria would be removed. The wooded area today was not within the property boundary and not owned by the applicant. The property could not be maintained by the current owner. The perimeter fence requirement would be replaced with another requirement. The current setback of the proposed homes would be 50 feet minimum from the existing curb which prevented the developer from putting a trail inside the development. The proposed change would still provide the same landscape buffer and prior setbacks would be removed to make them consistent with the criteria manual. The setbacks were inconsistent with the DDC and prohibited visibility and safety of the residents. The criteria for approval was reviewed which the proposal met. The Planning and Zoning Commission recommended approval with six conditions as requested by the applicant. Staff recommended approval minus the ingress /egress recommendation from the Commission. Mayor Pro Tem Gregory questioned where the access would be located. Bissett stated that would be determined at the platting phase as the zoning had to be in place first. Mayor Pro Tem Gregory asked if there would be sidewalks outside the security fence as well along Hinkle and Windsor. Bissett replied correct. Mayor Pro Tem Gregory questioned why the staff did not recommend the last Commission recommendation. Bissett stated the staff recommendation came before the Commission recommendation. It was added by the Commission after the staff recommendation. Council Member Roden asked if the Planning and Zoning Commission recommendation had been vetted through the Engineering team. He would hate to put in a condition that could not be enforced. Earl Escobar, Engineering Development Review Manager, stated that the access point would be off Hinkle. The access would be reviewed when the plat was submitted. Council Member Roden questioned the legal aspect of the wording if enforcement could not be done in terms of the engineering. Bissett stated that the current language was relatively strong and since it was not certain on the access, the wording might be softened for some latitude. Council Member Roden asked if the existing trees were on park land. City of Denton City Council Minutes July 21, 2015 Page 18 Julie Wyatt, Associate Planner, stated that in 2007 trees were removed and a condition was put on the property in 2011 for the remaining trees. The trees had been removed by a previous owner. Council Member Johnson stated that in terms of the bike lane, the developer would have to do a site plan with the bike lane already there. He suggested trusting the staff that any modifications would be ones that were absolutely necessary. He suggested removing that condition and trust staff to make sure the bike lane was not impacted. If it were impacted, the developer would pay for any modifications for it to remain. The Mayor opened the public hearing. Thomas Richardson, 707 Northridge, Denton, spoke in favor. The Mayor closed the public hearing. Mayor Pro Tem Gregory motioned, Council Member Roden seconded to adopt the ordinance with all of the Planning and Zoning recommendations except for a change in wording for 44 dealing with the ingress /egress affecting the bike lanes. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -218 D. Z15 -0010 Hold a public hearing and consider a rezoning request from Neighborhood Residential Mixed Use (NRMU) and Neighborhood Residential Mixed Use 12 (NRMU -12) zoning district to a Neighborhood Residential 6 (NR -6) zoning district on approximately 20.13 acres of land generally located northwest of the intersection of Pockrus Page Road and Post Oak Boulevard. The Planning and Zoning Commission recommends approval (7 -0). Aimee Bissett, Interim Director of Planning and Development, stated that this was a residential development for the Villages of Carmel. The property would be rezoned to NR -6. She reviewed the location map, vicinity map, zoning map, and future land use map. Major considerations to consider for the rezoning were if there was population to support neighborhood mixed use, the nearest commercial service if zoned residential, and the extension of Post Oak Blvd. The proposal met the criteria. The Planning and Zoning Commission recommended approval; however, the staff recommended denial. The Mayor opened the public hearing Justin Bono, applicant, spoke in favor. Council Member Hawkins asked how many homes would be in the development. Bono replied about 100 homes. City of Denton City Council Minutes July 21, 2015 Page 19 Council Member Roden stated that most of the comments he was hearing was for the safety of students going to and from Pecan Elementary. He questioned where the sidewalks would be in this project. Bono stated that they would fund the portion adjacent to their project to Post Oak. Council Member Johnson questioned that if this rezoning was not successful would the developer put in commercial. Bono replied no as it was not a good location for a commercial use. Council Member Wazny stated that NR -6 was consistent with the surrounding areas and the current residents were in favor of residential development. Leo Miller, 3091 Swisher Road, spoke in favor. Comment cards were received from Margaret Lindsey, 3804 Cliffside, Denton; Mary Finley, 3701 Oceanview, Denton; and Bill Kamp, 5100 Pebble Beach Trail, Denton in support. The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Johnson seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -219 E. DCA15 -0002 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending "Permitted Uses" in Subchapter 35.5 of the Denton Development Code to add "Craft Alcohol Production" to the use tables with a Limitation and to amend Subchapter 23.2 "Definitions and Terms" to define the use of "Craft Alcohol Production" and allow for the definition of "Restaurant, Brewpub "; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (5 -0). Aimee Bissett, Interim Director of Planning and Development, stated that this was a public hearing to amend the Denton Development Code to facilitate microbreweries in the City in the downtown area. Currently the use was classified as light manufacturing. The proposal was to add craft alcohol production to the list of uses in the DDC. It was noted that microbreweries differed from brewpubs. She reviewed current zoning uses and proposal needs. One task was to permit microbreweries Downtown without allowing all light manufacturing. The proposal would require on -site consumption at least Downtown. To promote the walkability of Downtown, staff was also recommending that in certain districts these uses provide an onsite consumption component, such as a taproom or retail sales, for the general public. City of Denton City Council Minutes July 21, 2015 Page 20 The proposed definitions for microbreweries and restaurant brewpub were reviewed along with the limitations for zoning districts. The Planning and Zoning Commission along with staff recommended approval. Council Member Johnson asked about the on -site consumption requirement in the D -CG district. Bissett stated that it would be for on -site and /or retail sales in the downtown area. Council Member Johnson questioned what onsite consumption was. Bissett stated that it was open to the public at certain hours. Council Member Wazny stated that she had concerns about anything larger than 10,000 square feet in the downtown area. She would like to keep it at 10,000 feet rather than have more square footage with a Specific Use Permit. The ordinance could be amended later if needed. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Doug Smith, 1210 Shady Oaks Drive, Denton — was in favor but concerned about the 10,000 square feet as that was very large with lots of trucks each day. He felt the zoning should be in light industrial. Council Member Wazny questioned that if 10,000 feet was too large, what should it be. Smith replied to limit it to 3,000 barrels per day which would put the square footage at about 3,000 square feet. Mayor Pro Tem Gregory asked if the trucks would have to come in at all hours or could a set time period be made for deliveries. Smith stated that with this option a facility larger than what was thought of could be developed. There was also the consideration of waste products that farmers picked up. Council Member Roden stated that the concept of downtown breweries was growing and asked Smith about the square footage of other facilities he knew of. Smith stated that they were larger but in a larger city. For example, Fort Collins had large breweries that were outside the downtown area. He felt a good definition would include wording that would require the sale of the majority of the product on site which would keep them to an appropriate size. Council Member Roden asked if Smith had received concerns from the neighborhood where his microbrewery was located. Smith stated that they were careful when they chose a place to develop. They had some issues with the residents but not with smells but rather with noise. City of Denton City Council Minutes July 21, 2015 Page 21 Bobby Mullins spoke in favor. He indicated that there was already heavy manufacturing in the downtown area and that there were ways to remedy smells and noise. Council Member Johnson asked what a realistic production was with a 10,000 facility with no outside storage. Mullins felt it would be about 15,000 barrels per year. Council Member Roden stated that it was more expensive to locate in the downtown area rather than other areas. Mullins stated correct. Council Member Roden asked what the attraction was to go downtown due to economics. Mullins stated that it would involve being a part of the growing area of the downtown. Scott Lindsay, Meadowlark Lane, Denton — spoke in favor The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. Council Member Wazny felt that she needed more information on this ordinance. There were issues and concerns expressed by citizens that should be examined such as how many barrels, the hours of trucks, number of trucks, spent grain, etc. She suggested looking at a few other ordinances in terms of protection for citizens and business owners already invested in downtown. Other business owners should be consulted regarding the issue. Council Member Hawkins stated that the Council would hear from business owners when a SUP was applied for. Mayor Pro Tem Gregory stated that there were nuisance ordinances already in place for odors. Council Member Johnson felt staff had researched the proposal and was comfortable with the provisions. He felt it would get smaller breweries rather than larger ones with more production. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", and Mayor Pro Tem Gregory "aye" and Council Member Wazny "nay ". Motion carried with a 5 -1 vote. 6. CITIZEN REPORTS The citizen reports scheduled for this part of the meeting were moved to the beginning of the meeting. City of Denton City Council Minutes July 21, 2015 Page 22 7. 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 Johnson stated that there was no high speed intereet in the Downtown area and that the current provider would not provide high speed intereet in the Downtown area. He suggested exploring other options as soon as possible. Council Member Roden suggested a discussion with the Chamber similar to the one the Council just had regarding the CVB. Council Member Wazny stated that the Animal Shelter contract with current veterinarian and veterinarian tech were up for renewal in September. She would like to review those contracts in August before the renewal date. Mayor Pro Tem Gregory requested a Work Session on the possibility of forming a Council Committee on public safety. Mayor Watts requested an update on townhomes alley ways and trash pickup regulations. Mayor Watts requested a work session on Council Member Johnson's Internet issue. Council Member Hawkins requested an Informal Staff Report on a program to help with trash charges and collection fees especially for elderly. B. Possible Continuation of Closed Meeting topics, above posted. There was no continuation of the Closed Meeting. With no further business, the meeting was adjourned at 9:49 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -633, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George Campbell Date: August 18, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving an Economic Development Agreement between the City of Denton and Victor Equipment Company for an incentive grant involving development at the property located at 2800 Airport Road, Denton, Texas 76207 and for which the Economic Development Partnership Board recommends approval; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. BACKGROUND Victor Technologies is a global manufacturer dedicated to developing innovative advanced cutting, gas control and specialty welding solutions. Founded in 1913 by L.W. Stettner, the original San Francisco manufacturing operations were relocated to their new headquarters in Denton in the mid- 1960s. Victor Technologies is planning to expand the existing Victor Equipment Company facility, located at 2800 Airport Road. The project will include renovations and improvements to their existing facility. Improvements to the existing operation will create approximately 30,000 square feet of Research and Development space. A new 185,400- square -foot warehouse and remodeled parking would complete the renovations. The current operation employs 414 full time employees. Victor has a distribution center in DFW that employs about 100 people that will be transferred to the new facility in Denton. Over the next three years, Victor will create an additional 100 new jobs with an average wage of $29.93 per hour. RECOMMENDATION The Economic Development Partnership Board recommends approval of an incentive for Victor Technologies equal to 65 percent of the increase in the City's ad valorem taxes for seven years while maintaining a minimum of 85 percent of new jobs created with commensurate salaries. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 15, 2015, the Economic Development Partnership Board received a report, held a discussion and made a recommend to approve an incentive for Victor Technologies equal to 65 percent of the increase in the City's ad valorem taxes for seven years while maintaining 85 percent of jobs with commensurate salaries. The City of Denton Page 1 of 2 Printed on 8/13/2015 File #: ID 15 -633, Version: 1 motion was approved unanimously with a vote of 5 -0. FISCAL INFORMATION Based on the financial information provided in Victor Technologies incentive agreement application, staff estimates an annual payment of $71,734 per year for a total incentive package of approximately $ 573,872. EXHIBITS Ordinance Respectfully submitted: Aimee Bissett Economic Development Department Prepared by: Christina Davis Economic Development Marketing Specialist City of Denton Page 2 of 2 Printed on 8/13/2015 ORDINANCE NO. AN ORDINANCE ESTABLISHING AN ECONOMIC DEVELOPMENT PROGRAM UNDER CHAPTER 380 OF THE LOCAL GOVERNMENT CODE FOR MAKING GRANTS OF PUBLIC MONEY TO PROMOTE ECONOMIC DEVELOPMENT AND TO STIMULATE BUSINESS ACTIVITY IN THE CITY OF DENTON; APPROVING AN ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH VICTOR EQUIPMENT COMPANY AND MOHR DENTON, LLC, SETTING FORTH THE GRANT CONDITIONS AND TERMS TO VICTOR EQUIPMENT COMPANY AND MOHR DENTON, LLC RECEIVING THE PROGRAM GRANT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Victor Equipment Company, ( "Grantee ") has made a request of the City of Denton to establish an economic development program under Chapter 380 of the Texas Local Government ( "Chapter 380 ") to stimulate the development of commercial property within the City of Denton; and WHEREAS, the City Council by this ordinance is establishing an economic development program under Chapter 380 which will stimulate business activity in the City and promote the public interest (the "Program "); WHEREAS, to effectuate the Program, the City and Grantee have negotiated an Economic Development Grant Agreement (the "Agreement "), a copy of which is attached hereto and made a part hereof by reference; and WHEREAS, the City Council finds that the Program and Agreement promote economic development and will stimulate commercial activity within the City of Denton for the benefit of the public; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement on behalf of the City of Denton and to carry out the City's responsibilities and rights under the Agreement, including without limitation the authorization to make the expenditures set forth in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. Victor ordinance (2).docx PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY A CHRIS WATTS, MAYOR Page 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -666, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: August 18, 2015 SUBJECT Consider nominations /appointments to the City's Boards and Commissions: Animal Shelter Advisory Committee; Health & Building Standards Commission; Historic Landmark Commission; Human Services Advisory Committee; Parks, Recreation and Beautification Board; Planning and Zoning Commission; and Public Utilities Board. BACKGROUND Attached are the nominations Council has submitted for board and commission positions. Additional nominations could be made and voted on at this meeting should the Council desire. Approval would be contingent on completion of the confirmation process. EXHIBITS Exhibit 1 - Nominations Sheet for 2015 Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 1 of 1 Printed on 8/13/2015 BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Animal Shelter Advisory Committee Wazny Watts Dr. Angela Paben Health & Building Standards Commission Watts Alternate Historic Landmark Commission Gregory Human Services Advisory Committee Johnson Laura Mauelshagen Parks, Recreation & Beautification Board Watts Planning and Zoning Commission Watts Public Utilities Board Gregory 08/18/2015 R - Reappointment N - New Nomination City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -737, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George C. Campbell Date: August 18, 2015 SUBJECT Consider appointing a nominating committee to recommend appointees to serve on the Economic Development Partnership Board. BACKGROUND Economic Development Partnership Board (EDPB) members serve two -year terms and may serve as many as three terms. The ordinance establishing the EDPB requires that the City Council appoint three persons to serve as a nominating committee, to include two City Council members and one person who is a member of the Chamber of Commerce. The nominating committee members who appointed EDPB members in 2014 were Councilmembers John Ryan and Jim Engelbrecht and Chamber member Marty Rivers. The committee is asked to confirm with each potential nominee his /her willingness to serve. The nominating committee will then make its recommendation to the City Council for appointment to the EDP Board at a future meeting. The ordinance requires that EDPB members must fall into specific categories when they are originally appointed to the Board (see chart below). City Council members and Chamber of Commerce Board members may be reappointed to two additional consecutive terms even if they no longer serve on the City Council or Chamber Board. The City Manager, George Campbell, the President of the Chamber of Commerce, Chuck Carpenter, and DISD Superintendent, Jamie Wilson, serve as ex- officio members and have no defined terms of service. Current EDPB members are: EDP Board Member Category Term Expires Virgil Strange, Chair Chamber of Commerce 2015 (not eligible) Greg Johnson City Council 2015 (eligible) Chris Watts City Council 2016 Marty Rivers Chamber of Commerce 2016 Jim Fykes Top 20 Taxpayer 2015 (eligible) City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -737, Version: 1 John Gilmer Top 20 Taxpayer 2016 President University of North Texas 2014 -009 Cleve Breedlove Aviation 2015 (eligible) Carrell Ann Simmons At Large 2016 Virgil Strange has now served three two -year terms and is not eligible for reappointment this year. Greg Johnson, Jim Fykes, and Cleve Breedlove's terms will expire, but all are eligible for reappointment. Ordinance No. 2015 -074 provides for the addition of two new members to be appointed to serve effective in 2015, bringing the EDP Board membership to eleven total. As described in Sec. 2 -251 C (7): "With the intent to enhance the diversity of the Board, one nominee shall be a representative nominated by the Black Chamber Board of Directors and one nominee shall be a representative nominated by the Hispanic Chamber Board of Directors. If a nomination is not made by either one of these Boards, the Committee and the City Council shall consider the racial, ethnic, and gender diversity of the Board as well as the knowledge, skills, and abilities of the nominees to assist in all or any one of the functions of the Economic Development Partnership Board when making selections. These members must reside or work in the City of Denton." ESTIMATED SCHEDULE OF PROJECT The Nominating Committee is respectfully asked to report on their recommendations at the Sept. 15, 2015, meeting so that newly appointed or reappointed EDP Board members may begin their terms in October 2015. EXHIBITS Ordinance No. 2015 -074 Ordinance No. 2014 -009 Ordinance No. 2011 -042 Ordinance No. 2003 -258 Respectfully submitted: Aimee Bissett Director, Economic Development Department Prepared by: Caroline Booth Interim Assistant Director, Economic Development Department City of Denton Page 2 of 2 Printed on 8/13/2015 sAegahour documents \ordinances \15 \edp ordinance option l.docx Exhibit 1 ORDINANCE NO. 4 15 -074. AN ORDINANCE AMENDING ORDINANCE NO. 2003 -258, AS AMENDED BY ORDINANCE NO. 2011 -042 AND ORDINANCE NO. 2014 -009, RELATING TO THE ECONOMIC DEVELOPMENT PARTNERSHIP BOARD ( "THE BOARD ") TO ADD TO THE MEMBERSHIP OF THE BOARD; REPEALING ALL CONFLICTING ORDINANCES AND PORTIONS THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas has expressed the intent to diversify the Economic Development Partnership Board, it is in the public interest to modify the membership of the Economic Development Partnership Board to include participation of the Black Chamber of Commerce and the Hispanic Chamber of Commerce; and WHEREAS, the Economic Development Partnership Board has a proven track record of effectiveness in the City of Denton with regard to reviewing and making recommendations to the City Council concerning economic development within the community; and WHEREAS, the Economic Development Partnership Board has proven particularly adept in the recruitment of business and development in the community; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article IX. Sec. 2 -251 of Ordinance No. 2003 -258 is hereby amended as follows: ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOARD Sec. 2 -251. Creation, Members, Qualifications, and Tenure. A. There is hereby created a City of Denton board entitled the Denton Economic Development Partnership Board (the "Board "). The Board shall consist of eleven members. The nine board members currently serving shall serve as originally appointed. The members, as described in Sec. 2 -251 C (7) below, shall be appointed to serve effective in 2015. These two members shall draw straws to determine which will serve an initial one year term and which will serve an initial two year term. Thereafter, six members shall be appointed for a two -year term in even numbered years and five members shall be appointed for a two -year term in the odd numbered years. No member shall serve more than three consecutive terms except for the President of the University of North Texas ( "UNT "), or his designee, who may serve unlimited terms. B. The Board members shall be appointed by the City Council and shall serve at the City Council's pleasure. To aid the City Council in making appointments to the Board, the City Council will appoint two City Council members and one Denton Chamber of Commerce ( "Chamber ") member to act as a nominating committee (the "Committee "). The Committee members are qualified for appointment to the Board. The Committee will solicit nominations, contact nominees to relate duties and responsibilities and to confirm willingness to serve. The s: \legal \our documents \ordinances \15 \edp ordinance option Ldocx Exhibit 1 Committee will solicit recommendations from the Denton Chamber Board of Directors, the President of UNT, and the Black and Hispanic Chamber Boards of Directors. If any such nomination is not submitted, the Committee will consider the racial, ethnic, and gender diversity objectives of the City Council when making its nomination recommendations to the City Council. After evaluating the recommended nominees the Committee will present to the City Council a slate of Board nominees for City Council consideration. C. Notwithstanding anything contained herein to the contrary the membership make- up of the Board shall consist of the following 1. Two members of the Board shall be City Council members at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the City Council after the original appointment as long as they continuously serve throughout the three terms. They must be residents of the City of Denton. 2. Two members of the Board shall be members of the Denton Chamber of Commerce Board of Directors ( "Chamber Board ") at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the Chamber Board after the original appointment as long as they continuously serve throughout the three terms. They must reside or work in the City of Denton. The Chamber Board will recommend the two nominees for consideration by the Committee and the City Council. 3. Two members will be, or be employed by, a top twenty City of Denton ad valorem or sales tax payer. Such members must reside or work in the City of Denton. 4. One member will be the President of UNT or a UNT faculty or staff member designated by the President. Such member need not reside in the City of Denton and is not restricted to the three term limits. However, such member must be appointed by the City Council for each term. 5. One member will have knowledge or experience in general aviation - related matters and shall have no financial interest in matters at the Denton Municipal Airport. This member must reside or work in the City of Denton. 6. One member will be a citizen of the City of Denton who, in the discretion of the City Council, has specific knowledge skills and abilities to assist in all or any one of the functions and responsibilities of the Economic Development Partnership Board. Page 2 sAlegal \our documents \ordinances \15 \edp ordinance option 1.docx Exhibit 1 7. With the intent to enhance the diversity o:f "the oard,, otie no anilnce shall be a representative nominale(l by the Black Cha naber Board of Dlaectoas and, one nominee shall be as aepreselatat ve laoaalltlated by the f 11spaalnrc Ch alaaber Board of Directors. If a nomination is not made by either one of these Boards, the Committee and the City Council shall consider the racial, ethnic, and gender diversity of the Board as well as the knowledge, skills, and abilities of the nominees to assist in all or any one of the functions of the Economic Development Partnership Board when making selections. These members must reside or work in the City of Denton. 8. The City Manager, the President of the Chamber, and the Superintendent of the Denton Independent School District will serve as ad hoc non - voting members of the Board. SECTION 2. This Ordinance amends Ordinance No. 2003 -258, Ordinance 2011 -042, and Ordinance 2014 -009 and supersedes and repeals any provision of those ordinances, or any other, in conflict herewith. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the _ day of __.... .�� 2015. MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: _ Page 3 \\codad\departmentsUegakour documents \ordinances \13 \edp amendment.doc Exhibit 2 ORDINANCE NO. 2014 -009 AN ORDINANCE AMENDING ORDINANCE NO. 2003 -258, AS AMENDED BY ORDINANCE 2011 -042, RELATING TO THE ECONOMIC DEVELOPMENT PARTNERSHIP BOARD ( "THE BOARD ") BOARD; REPEALING ALL CONFLICTING AND PROVIDING AN EFFECTIVE DATE. TO ADD TO THE MEMBERSHIP OF THE ORDINANCES AND PORTIONS THEREOF; WHEREAS, the City Council of the City of Denton, Texas has determined that due to the impact that economic development has upon the school district, it is in the public interest to modify the membership of the Economic Development Partnership Board to include participation of the Denton Independent School District; and WHEREAS, the Economic Development Partnership Board has a proven track record of effectiveness in the City of Denton with regard to reviewing and making recommendations to the City Council concerning economic development within the community; and WHEREAS, the Economic Development Partnership Board has proven particularly adept in the recruitment of business and development in the community; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article IX. Sec. 2 -251 of Ordinance No. 2003 -258 is hereby amended as follows: ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOARD Sec. 2 -251. Creation, Members, Qualifications, and Tenure. A. There is hereby created a City of Denton board entitled the Denton Economic Development Partnership Board (the "Board "). The Board shall consist of nine members. The seven board members currently serving shall serve as originally appointed. The member, as described in Sec. 2 -251 C.(5) below, shall be appointed to serve until the City Council shall make its 2012 board appointments. The member, as described in Sec. 2 -251 C.(6) below, shall be appointed to serve until the City Council shall make its 2011 board appointments. Thereafter, five members shall be appointed for a two -year term in the even numbered years and four members shall be appointed for a two -year term in the odd numbered years. No member shall serve more than three consecutive terms except for the President of the University of North Texas ( "UNT "), or his designee, who may serve unlimited terms. B. The Board members shall be appointed by the City Council and shall serve at the City Council's pleasure. To aid the City Council in making appointments to the Board, the City Council will appoint two City Council members and one Chamber of Commerce ( "Chamber ") member to act as a nominating committee (the "Committee "). The Committee members are qualified for appointment to the Board. The Committee will solicit nominations, contact nominees to relate duties and responsibilities and to confirm willingness to serve. The Board will Exhibit 2 solicit recommendations from the Chamber Board of Directors and the President of UNT. After evaluating the recommended nominees the Committee will present to the City Council a slate of Board nominees for City Council approval. C. Notwithstanding anything contained herein to the contrary the membership make- up of the Board shall consist of the following 1. Two members of the Board shall be City Council members at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the City Council after the original appointment as long as they continuously serve throughout the three terms. They must be residents of the City of Denton. 2. Two members of the Board shall be members of the Chamber Board of Directors ( "Chamber Board ") at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the Chamber Board after the original appointment as long as they continuously serve throughout the three terms. They must reside or work in the City of Denton. The Chamber Board will recommend the two nominees for consideration by the Committee and approval by the City Council. 3. Two members will be, or be employed by, a top twenty City of Denton ad valorem or sales tax payer. Such members must reside or work in the City of Denton. 4. One member will be the President of UNT or a UNT faculty or staff member designated by the President. Such member need not reside in the City of Denton and is not restricted to the three term limits. However, such member must be appointed by the City Council for each term. 5. One member will have knowledge or experience in general aviation - related matters and shall have no financial interest in matters at the Denton Municipal Airport. This member must reside or work in the City of Denton. 6. One member will be a citizen of the City of Denton who, in the discretion of the City Council, has specific knowledge skills and abilities to assist in all or any one of the functions and responsibilities of the Economic Development Partnership Board. 7. The City Manager, the President of the Chamber, and the Superintendent of the Denton Independent School District will serve as ad hoc non - voting members of the Board. ;.. Exhibit 2 SECTION 2. Sec. 2 -254 is amended to add a section F. as follows: Sec. 2 -254. Duties and Responsibilities of the Board. F. The Board will review, consider and make recommendations to the Denton City Council regarding Airport Branding and Marketing to support the implementation of the Denton Airport 2010 Business Plan. The Board will review, consider and make recommendations to the Denton City Council regarding Denton Municipal Airport incentive polices, as assigned by the City Council or requested by the City Manager, and will act as a recommending body to the City Council for specific airport economic development incentives, as assigned by the City Council or requested by the City Manager and permitted by City and State law. SECTION 3. This Ordinance amends Ordinance No. 2003 -258 and Ordinance 2011 -042 supercedes and repeals any provision of that ordinance, or any other, in conflict herewith. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day y of '201 ATTEST: JENNIFER WALTERS,, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ,w. BY: Page 3 MARK A"'�-BUR 1 OUG1 -I , MAYOR Exhibit 3 \ \codad \departments\1ega1\our documents \ordinances\1 0 \edp amended ord.docx ORDINANCE NO. 2011 -042 AN ORDINANCE AMENDING ORDINANCE NO. 2003 -258 RELATING TO THE ECONOMIC DEVELOPMENT PARTNERSHIP BOARD (THE BOARD) TO ADD TO THE MEMBERSHIP OF THE BOARD AND TO EXPAND THE DUTIES OF THE BOARD TO INCLUDE BRANDING AND MARKETING FOR THE DENTON MUNICIPAL AIRPORT IN SUPPORT OF THE DENTON AIRPORT 2010 BUSINESS PLAN AND TO FURTHER INCLUDE DUTIES RELATED TO AIRPORT ECONOMIC DEVELOPMENT INCENTIVES; REPEALING ALL CONFLICTING ORDINANCES AND PORTIONS THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to modify the Economic Development Partnership Board to encompass certain responsibilities concerning the City of Denton Municipal Airport; and WHEREAS, the City of Denton commissioned an Airport Business Plan study which was approved by the Denton City Council on November 16, 2010, which Plan recommended the modification of the Denton Airport governance structure to assist with vetting financial proposals for the Airport, as well as providing policy input related to targeted marketing initiatives and development; and WHEREAS, the Economic Development Partnership Board has a proven track record of effectiveness in the City of Denton with regard to reviewing and making recommendations to the City Council concerning economic development within the community; and WHEREAS, the Economic Development Partnership Board has proven particularly adept in the recruitment of business and development in the community; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article IX. Sec. 2 -251 of Ordinance No. 2003 -258 is hereby amended as follows: ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOARD Sec. 2 -251. Creation, Members, Qualifications, and Tenure. A. There is hereby created a City of Denton board entitled the Denton Economic Development Partnership Board (the `Board). The Board shall consist of nine members. The seven board members currently serving shall serve as originally appointed. The member, as described in Sec. 2 -251 C.(5) below, shall be appointed to serve until the City Council shall make its 2012 board appointments. The member, as described in Sec. 2 -251 C.(6) below, shall be appointed to serve until the City Council shall make its 2011 board appointments. Thereafter, five members shall be appointed for a two -year term in the even numbered years and four members shall be appointed for a two -year term in the odd numbered years. No member shall Exhibit 3 Uodad\departmentsVegahour documents \ordinances \10 \edp amended ord.docx serve more than three consecutive terms except for the President of the University of North Texas (UNT), or his designee, who may serve unlimited terms. B. The Board members shall be appointed by the City Council and shall serve at the City Council's pleasure. To aid the City Council in making appointments to the Board, the City Council will appoint two City Council members and one Chamber of Commerce (`Chamber member to act as a nominating committee (the "Committee. The Committee members are qualified for appointment to the Board. The City Manager and President of the Chamber will serve as ad hoc non - voting members of the Committee. The Committee will solicit nominations, contact nominees to relate duties and responsibilities and to confirm willingness to serve. The Board will solicit recommendations from the Chamber Board of Directors and the President of UNT. After evaluating the recommended nominees the Committee will present to the City Council a slate of Board nominees for City Council approval. C. Notwithstanding anything contained herein to the contrary the membership make- up of the Board shall consist of the following 1. Two members of the Board shall be City Council members at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the City Council after the original appointment as long as they continuously serve throughout the three terms. They must be residents of the City of Denton. 2. Two members of the Board shall be members of the Chamber Board of Directors (`Chamber Board) at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the Chamber Board after the original appointment as long as they continuously serve throughout the three terms. They must reside or work in the City of Denton. The Chamber Board will recommend the two nominees for consideration by the Committee and approval by the City Council. 3. Two members will be, or be employed by, a top twenty City of Denton ad valorem or sales tax payer. Such members must reside or work in the City of Denton. 4. One member will be the President of UNT or a UNT faculty or staff member designated by the President. Such member need not reside in the City of Denton and is not restricted to the three term limits. However, such member must be appointed by the City Council for each term. 5. One member will have knowledge or experience in general aviation - related matters and shall have no financial interest in matters at the Denton Municipal Airport. This member must reside or work in the City of Denton. Page 2 Exhibit 3 Uodad\departmentsVegaRour documents \ordinances \10 \edp amended ord.docx 6. One member will be a citizen of the City of Denton who, in the discretion of the City Council, has specific knowledge skills and abilities to assist in all or any one of the functions and responsibilities of the Economic Development Partnership Board. SECTION 2. Sec. 2 -254 is amended to add a section F. as follows: Sec. 2 -254. Duties and Responsibilities of the Board. F. The Board will review, consider and make recommendations to the Denton City Council regarding Airport Branding and Marketing to support the implementation of the Denton Airport 2010 Business Plan. The Board will review, consider and make recommendations to the Denton City Council regarding Denton Municipal Airport incentive polices, as assigned by the City Council or requested by the City Manager, and will act as a recommending body to the City Council for specific airport economic development incentives, as assigned by the City Council or requested by the City Manager and permitted by City and State law. SECTION 3. This Ordinance amends Ordinance No. 2003 -258 and supercedes and repeals any provision of that ordinance, or any other, in conflict herewith. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. E� PASSED AND APPROVED this the J day of '2011. —&AM ATTEST: JENNIFER WALTERS, CITY SECRETARY B k,dV1,1411lki -4 -) A"ROVED"AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: JAA i Page 3 U Exhibit 4 AN ORDINANCE OF THE CITY OF DENTON, TEXAS ESTABLISHING AN ECONOMIC DEVELOPMENT PARTNERSHIP BOARD; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of City of Denton, Texas has determined that it is beneficial and in the public interest to establish an Economic Development Partnership Board to provide economic development policy guidance for the City; NOW, THEREFORE-; THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. Findings. The findings contained in the preamble of this ordinance are incorporated into the body of this Ordinance. SECTION 2, The Code of Ordinances of the City of Denton is hereby amended to add Article IX of Chapter 2 to read as follows: 0 ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOA1401 See. 2-251. Creation, Members, Qualifications, and Tenure. A. There is hereby created a City of Denton board entitled the Denton Economic Development Partnership Board (the "Board"). The Board shall consist of seven members, The board members shall be appointed for two-year terms except that four members shall only serve a one-year term for their first term. Thereafter, four members shall be appointed for a two-year term in the even numbered years and three members shall be appointed for a two-year term in the odd numbered years. No member shall serve more than three consecutive terms except for the President of the University of North Texas ("UNT"), or his designee, who may serve unlimited terms. B. The Board members shall be appointed by the City Council and shall serve at the City Council's pleasure. To aid the City Council in making appointments to the Board the City Council will appoint two City Council members and one Chamber of Commerce ("Chamber") member to act as a nominating committee (the "Committee"). The Committee members are qualified for appointment to the Board. The City Manager and President of the Chamber will serve as ad hoc non-voting members of the Committee, The Committee will solicit nominations, contact nominees to relate duties and responsibilities and to confirm willingness to serve, The Board will solicit recommendations from the Chamber Board of Directors and the President of UNT. After evaluating the recommended nominees the Committee will present to the City Council a slate of Board nominees for City Council approval. 11 Exhibit 4 C. Notwithstanding anything contained herein to the contrary the membership make-up of the Board shall consist of the following Two members of the Board shall be City Council members at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the City Council after the original appointment as long as they continuously serve throughout the three terms. They must be residents of the City of Denton. 2. Two members of the Board shall be members of the Chamber Board of Directors ("Chamber Board") at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the Chamber Board after the original appointment as long as they continuously serve throughout the three terms. They must reside or work in the City of Denton, The Chamber Board will recommend the two nominees for consideration by the Committee and approval by the City Council. 3 Two members will be, or be employed by, a top twenty City of Denton ad valorem or sales tax payer. Such members must reside or work in the City of Denton. 4. One member will be the President of UNT or a UNT faculty or staff member designated by the President. Such member need not reside in the City of Denton and is not restricted to the three term limits. However, such member must be appointed by the City Council for each term. D. The Board shall elect its chairperson and vice-chairperson from among its members who shall serve for one-year terms or until his or her successor is elected or qualified. The Board may remove and re-elect a chairperson or vice - chairperson at anytime with an affinnative vote of at least five members. E. The Denton City Manager and the Chamber President shall be ex-officio members of the Board. F. Board members shall serve without compensation. Board members may be allowed ovit-of-pocket expenses for activities performed in furtherance of their duties to the Board. Such expenses must be pre-approved by the City Manager if paid for out of City funds, or the Chamber President if paid for out of Chamber funds. 0 Page 2 S:\Our Documents\Ordinanccs\03\EDP Ordinance.doc r] Exhibit 4 See. 2-252. Meetings. The Board shall meet on a regular basis and no less than on a quarterly basis. Monthly meetings are encouraged. The chairperson, vice-chairperson or any three Board members may call any regular or special meeting. Notice of the meetings shall be posted and conducted in accordance with the Texas Open Meetings law, being Chapter 551 of the Government Code, as amended. A majority of the qualified voting members of the Board shall constitute a quorum for the transaction of business at any meeting of the Board. The act of a majority of the qualified voting members of the Board present at a meeting at which a quorum is present shall be the act of the Board. See. 2-253. Rules of Procedure. The Board shall adopt rules of procedure governing the operation of the Board incorporating Sections 2, 3, 5, and 7 of City Council Rules of Procedure insofar as it is possible. See. 2-254. Duties and Responsibilities of the Board. The role of the Board is to provide economic development policy guidance, The Board may make recommendations to the City Council and Chamber, The Boards duties include: A. The Board will implement Denton's Economic Development Action Plan which includes the implementation of specific projects, The Board may create committees or task forces consisting of Board members and/or non- Board members to assist with the implementation of projects or activities. Committee task force chairpersons shall be appointed by the Board and will serve at the pleasure of the Board. B. The Board will be responsible for designing economic development incentive policies and recommending those policies to the City Council for adoption. These policies may include tax abatement, Chapter 380 agreements, infrastructure assistance, etc. In making any recommendations the Board shall comply with applicable law. It will be the Board's responsibility to review policies of other cities and to be informed as to legislative changes affecting state and local incentive programs. C, The Board shall act as the recommending body to the City Council for specific project economic development incentives authorized by law, including without limitation tax abatements and incentives authorized under Chapter 312 of the Tax Code, economic development agreements authorized under Chapter 380 of the Local Government Code, and public improvement districts authorized under Chapter 372 of the Local Page 3 SA0ur Docurncnts\0rdinances\03\EDP Ordinance.doc r] Exhibit 4 Government Code. However, utility incentives based on thresholds, such as the Electric Utility Industrial Development Rider and the Water/Wastewater Plan Line Extension may be made without Board review or recommendation. Nothing herein shall be construed so as to invalidate an economic development incentive authorized by the City Council or Chamber that did not receive a recommendation from the Board. D. The Board will review and recommend both the City and Chamber annual economic development budgets. These recommendations will be made to the City Manager and Chamber President for inclusion in the overall City and Chamber budgets. E. The Board will review and recommend the annual work plans for the City and Chamber economic development programs. Work plans must be consistent with the annual budgets. SECTION 3. This ordinance supercedes any provision in any City ordinance that is conflict with this ordinance including without limitation Section 2-61 of the Code of Ordinances of the City of Denton. SECTION 4. The Economic Development Partnership Board replaces the Joint Committee on Tax Abatement (the " Joint Committee") and shall exercise all of the rights and duties of the Joint Committee. The Joint Committee is hereby dissolved to be effective from and after the appointment of the Board members, and they are qualified to serve (the "Effective Date"). This shall not effect the validity of any action taken by the Joint Committee prior to the Effective Date. SECTION S. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the M4 day of 2003. EULINE BROCK, MAYOR 11 MEMO BY: 14 -Pacre 4 C� S:\Our Documents\0rdinances\03\ED11 Ordinance.doc City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -690, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley August 18, 2015 Legislation Text Agenda Information Sheet SUBJECT Hold a public hearing on a proposal to adopt a tax rate of $0.696380 per $100 valuation, which will exceed the lower of the effective or rollback tax rate. BACKGROUND The Texas Constitution and Texas Property Tax Code require taxing units to comply with specific guidelines in adopting tax rates. The guidelines are related to a concept known as truth -in- taxation. This concept is a way to make taxpayers aware of tax rate proposals and allow tax payers in certain circumstances, to roll back or limit a tax increase. The truth -in- taxation guidelines require taxing entities to calculate and publish their effective and rollback tax rates (Exhibit 1 - Notice of Proposed Tax Rate). The effective rate is the calculated rate that would provide the taxing unit approximately the same amount of revenue it received in the previous year on properties taxed in both years. This rate excludes taxes on properties no longer in the taxing unit and also excludes any growth due to new property values. The City of Denton's 2015 effective rate is $0.656271/$100 valuation. The rollback rate divides the total property tax revenue into support for maintenance and operations (M &O) taxes and debt service taxes. It provides approximately the same amount of revenue as in the previous year for maintenance and operations expenses, plus an extra eight percent, plus the necessary debt service tax rate. If a taxing unit adopts a tax rate higher than the rollback rate, the voters have the option to petition for an election to limit the size of the tax increase. The City of Denton's 2015 rollback rate is $0.721554/$100 valuation. The City Manager's FY 2015 -16 Proposed Annual Program of Services recommends a tax rate of $0.696380 per $100 of valuation, and this rate is $0.040109 above the effective rate. Since the City of Denton's proposed tax rate exceeds the effective tax rate, two public hearings are required to take place prior to the budget adoption. In compliance with state law, staff published the Notice of Proposed Tax Rate in the Friday, August 14, 2015, issue of the Denton Record Chronicle. In addition to the newspaper publications, the notice was posted on the City's Web site, <hqp: / /www.ciiyofdenton.com> and the public access channel. ESTIMATED SCHEDULE OF PROJECT September 1, 2015 Hold Second Required Public Hearing on Tax Rate City of Denton Page 1 of 2 Printed on 8/13/2015 File M ID 15 -690, Version: 1 September 15, 2015 Adopt Tax Rate and Approve FY 2015 -16 Annual Program of Services PRIOR ACTION/REVIEW (Council, Boards, Commissions) On July 31, 2015, the City Council was provided with detailed information regarding the FY 2015 -16 Proposed Annual Program of Services including the proposed tax rate. On August 6, 2015, the City Council discussed the proposed budget in work session. On August 11, 2015, the City Council discussed the proposed budget and voted to place a proposal on the September 15, 2015 City Council agenda to approve a tax rate above the effective rate. FISCAL INFORMATION In the FY 2015 -16 Proposed Budget, a tax rate of $0.696380 per $100 valuation is recommended. EXHIBITS 1. Notice of Proposed Tax Rate Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 2 of 2 Printed on 8/13/2015 Exhibit 1 NOTICE OF 2015 TAX YEAR PROPOSED PROPERTY TAX RATE FOR CITY OF DENTON A tax rate of $696380 per $100 valuation has been proposed for adoption by the governing body of the City of Denton. This tax rate exceeds the lower of the effective or rollback tax rate, and state law requires that two public hearings be held by the governing body before adopting the proposed tax rate. The governing body of the City of Denton proposes to use revenue attributable to the tax rate increase for the purpose of paving maintenance and operations expenses, and debt service. PROPOSED TAX RATE PRECEDING YEAR'S TAX RATE EFFECTIVE TAX RATE ROLLBACK TAX RATE $0.696380 per $100 $0.689750 per $100 $0.656271 per $100 $0.721554 per $100 The effective tax rate is the total tax rate needed to raise the same amount of property tax revenue for the City of Denton from the same properties in both the 2014 tax year and the 2015 tax year. The rollback tax rate is the highest tax rate the City of Denton may adopt before voters are entitled to petition for an election to limit the rate that may be approved to the rollback rate. YOUR TAXES OWED UNDER ANY OF THE ABOVE RATES CAN BE CALCULATED AS FOLLOWS: property tax amount = ( rate) x ( taxable value of your property )/100 For assistance or detailed information about tax calculations, please contact: Michelle French Denton County Tax Assessor - Collector 1505 E. McKinney Street, Denton, TX, 76209 940 - 349 -3500 Property.Tax& dentoncount. http://tax.dentoncounty.com You are urged to attend and express your views at the following public hearings on the proposed tax rate: First Hearing: August 18, 2015 at City Hall, 215 E. McKinney Street, Denton, TX, 76201 Second Hearing: September 1, 2015 at City Hall, 215 E. McKinney Street, Denton, TX, 76201 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: S115 -0001 b, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning & Development ACM: Jon Fortune Date: August 18, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance amending Section 35.13.7.A.7.e.i of the Denton Development Code (DDC) pertaining to permitted uses of the Tree Fund. The Planning and Zoning Commission recommends approval (4 -0). BACKGROUND The purpose of the proposed amendment is to expand the permitted expenditures of the Tree Fund to include the purchase of trees for planting on private property. This staff initiated amendment is a result of direction received from the City Council to utilize Tree Fund monies to provide trees to plant on private properties in the City and to develop a tree rebate program to encourage planting trees on private property in the City. This initiative would be achieved by supplementing the existing Keep Denton Beautiful (KDB) Tree Giveaway programs and creating new programs that support the planting of trees. The objective is to leverage outside resources such as labor, materials or funding, thereby allowing a greater number of trees to be planted at a reduced cost. General Considerations: 1. Per Section 35.13.7.A.7.e, the DDC states that Tree Fund dollars can be used "to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory and to educate citizens and developers on the benefits and value of trees." Staff recommends an amendment to this Section to allow the use of Tree Fund monies to realize the following programs proposed to be initiated by KDB and the City; i. Neighborhood Hosted Giveaway Program a. Neighborhood tree giveaways will be accomplished through partnering with area neighborhood groups, churches, and civic organizations to host their own small -scale tree giveaway events. ii. Business Giveaway Program a. Trees Mean Business is a giveaway program targeting small business owners who would like to plant trees in public view on commercial property. City of Denton Page 1 of 4 Printed on 8/13/2015 File M S115 -0001 b, Version: 1 • Applicants will be required to provide a watering /maintenance plan and will be selected by the KDB all volunteer board. • Successful applicants will be required to attend an Urban Forestry education class prior to receiving trees and are subject to follow up reports to track the health of the trees. iii. Redbud Giveaway a. Up to 250 Redbud trees will be given away at Denton Redbud Festival the Cities official Arbor Day Celebration. iv. Citizen Forester Training a. The Citizen Forester Certificate Program is a program through the Texas A &M Forest Service and Cross Timbers Urban Forestry Council that Certifies individuals in the areas of tree pruning, planting, production, managing trees in urban settings, tree id, and pest management. • Once Certified individuals must complete mandatory volunteer hours to maintain their certification. v. Children's Arbor Day On Campus Planting a. Enhancements to KDB's Children's Arbor Day program to offer an option to plant three inch caliper trees on school campuses • This program also provides water bags, mulch and a standardize Urban Forestry guide for teachers. vi. Tree Rebate Program a. The rebate program will assist residents by covering a portion of the cost to purchase a qualifying tree for planting on private property. b. Approved applicants will receive a $50 rebate in the form of a utility bill credit. c. The rebates will be distributed on a first come first serve basis and capped at a predetermined amount based on criteria being developed by KDB and Denton Sustainability. 2. The cost for planting trees through contract by the City is more than if it was through KDB's proposed Private Property Tree Planting Programs. In order to determine the average cost per tree, staff includes the cost of the tree, labor for planting the tree and the installation of irrigation. The average cost for planting trees through contract by the City is approximately $939 per tree ($452 for the cost and the labor for planting the tree and $487 for the installation of irrigation per tree). However the projected cost if planted through KDB's proposed Private Property Tree Planting Programs is $69 per tree. The reduced cost per tree is due to the allowance of planting smaller trees verses those required on public properties and the program participant covering the cost associated with installation and watering of the tree. Therefore if the ordinance is amended to incorporate the KDB's proposed Private Property Tree Planting Programs the average planting cost would be significantly lower and Tree fund dollars can be used to plant a greater number of trees. 3. In order to realize the proposed amendment, if approved, specific ordinances, as they relate to the proposed KDB initiatives as discussed, will have to be authored outlining the processes for the dissemination of funds. City of Denton Page 2 of 4 Printed on 8/13/2015 File #: S115 -0001 b, Version: 1 4. This request conforms to the Denton Plan 2030 Goal PCE -2, specifically: a. To promote the formation of a cohesive broad green infrastructure network for Denton that links open space and natural resources. b. To ensure the expansion and protection of Denton's tree canopy as an essential element of the City's cohesive broad green infrastructure framework. C. To assist in upholding regional air quality goals through increasing the existing tree canopy. OPTIONS 1. Approval as submitted. 2. Approval subject to conditions. 3. Denial. 4. Table the item to a date certain. RECOMMENDATION The Planning and Zoning Commission recommends approval (4 -0). Staff recommends approval of the proposed code amendment in order to ensure the expansion of Denton's tree canopy and to realize the mitigation of trees removed as a result of the growth and development of the City. PUBLIC NOTIFICATION To comply with the public hearing notice requirements, a notice was published in the Denton Record Chronicle on August 1, 2015. PRIOR ACTION /REVIEW September 16, 2014 City Council Work Session January 13, 2015 City Council Work Session March 3, 2015 City Council Work Session August 5, 2015 Planning and Zoning Commission recommended approval (4 -0). EXHIBITS 1. Staff Report 2. Recommended Code Amendment 3. Ordinance Tree Fund Code Amendment 4. KDB Board Resolution Approving Proposed Tree Programs City of Denton Page 3 of 4 Printed on 8/13/2015 File #: S115 -0001 b, Version: 5. KDB Private Property Tree Planting Programs 3 -Year Budget Projections Respectfully submitted: Aimee Bissett Interim Director of Planning and Development Prepared by: Haywood Morgan Urban Forester City of Denton Page 4 of 4 Printed on 8/13/2015 Exhibit I Planning Report DCA15- 0001 /Tree Code Amendment Planning & Zoning Commission August 5, 2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding an amendment to Section 35.13.7.A.7.e of the Denton Development Code (DDC) pertaining to permitted uses of the Tree Fund. BACKGROUND: The purpose of the proposed amendment is to expand the permitted expenditures of the Tree Fund to include the purchase of trees for planting on private property. This staff initiated amendment is a result of direction received from the City Council to utilize Tree Fund monies to provide trees to plant on private properties in the City and to develop a tree rebate program to encourage planting trees on private property in the City. This initiative would be achieved by supplementing the existing Keep Denton Beautiful (KDB) Tree Giveaway programs and creating new programs that support the planting of trees. The objective is to leverage outside resources such as labor, materials or funding, thereby allowing a greater number of trees to be planted at a reduced cost. CONSIDERATIONS: 1. Per Section 35.13.7.A.7.e, the DDC states that Tree Fund dollars can be used "to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory and to educate citizens and developers on the benefits and value of trees." Staff recommends an amendment to this Section to allow the use of Tree Fund monies to realize the following programs proposed to be initiated by KDB and the City; i. Neighborhood Hosted Giveaway Program a. Neighborhood tree giveaways will be accomplished through partnering with area neighborhood groups, churches, and civic organizations to host their own small - scale tree giveaway events. ii. Business Giveaway Program a. Trees Mean Business is a giveaway program targeting small business owners who would like to plant trees in public view on commercial property. • Applicants will be required to provide a watering/maintenance plan and will be selected by the KDB all volunteer board. *Successful applicants will be required to attend an Urban Forestry education class prior to receiving trees and are subject to follow up reports to track the health of the trees. iii. Redbud Giveaway a. Up to 250 Redbud trees will be given away at Denton Redbud Festival the Cities official Arbor Day Celebration. iv. Citizen Forester Training a. The Citizen Forester Certificate Program is a program through the Texas A &M Forest Service and Cross Timbers Urban Forestry Council that Certifies individuals in the areas of tree pruning, planting, production, managing trees in urban settings, tree id, and pest management. e Once Certified individuals must complete mandatory volunteer hours to maintain their certification. V. Children's Arbor Day On Campus Planting a. Enhancements to KDB's Children's Arbor Day program to offer an option to plant three inch caliper trees on school campuses • This program also provides water bags, mulch and a standardize Urban Forestry guide for teachers. vi. Tree Rebate Program a. The rebate program will assist residents by covering a portion of the cost to purchase a qualifying tree for planting on private property. b. Approved applicants will receive a $50 rebate in the form of a utility bill credit. c. The rebates will be distributed on a first come first serve basis and capped at a predetermined amount based on criteria being developed by KDB and Denton Sustainability. 2. The cost for planting trees through contract by the City is more than if it was through KDB's proposed Private Property Tree Planting Programs. In order to determine the average cost per tree, staff includes the cost of the tree, labor for planting the tree and the installation of irrigation. The average cost for planting trees through contract by the City is approximately $939 per tree ($452 for the cost and the labor for planting the tree and $487 for the installation of irrigation per tree). However the projected cost if planted through KDB's proposed Private Property Tree Planting Programs is $69 per tree. The reduced cost per tree is due to the allowance of planting smaller trees verses those required on public properties and the program participant covering the cost associated with installation and watering of the tree. Therefore if the ordinance is amended to incorporate the KDB's proposed Private Property Tree Planting Programs the average planting cost would be significantly lower and Tree fund dollars can be used to plant a greater number of trees. Planning Report DCA15 -0001 Page 2 of 3 3. In order to realize the proposed amendment, if approved, specific ordinances, as they relate to the proposed KDB initiatives as discussed, will have to be authored outlining the processes for the dissemination of funds. 4. This request conforms to the Denton Plan 2030 Goal PCE -2, specifically: a. To promote the formation of a cohesive broad green infrastructure network for Denton that links open space and natural resources. b. To ensure the expansion and protection of Denton's tree canopy as an essential element of the City's cohesive broad green infrastructure framework. c. To assist in upholding regional air quality goals through increasing the existing tree canopy. STAFF RECOMMENDATION: Staff recommends approval of the proposed code amendment in order to ensure the expansion of Denton's tree canopy and to realize the mitigation of trees removed as a result of the growth and development of the City. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item to a date certain. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, a notice was published in the Denton Record Chronicle on June 21, 2015. ATTACHMENTS: • Recommended Code Amendment • Ordinance Tree Fund Code amendment • KDB Board Resolution Approving Proposed Tree Programs • KDB Private Property Tree Planting Programs 3 -Year Budget Projections Prepared By: Reviewed By: Haywood Morgan, Jr. Munal Mauladad Urban Forester Assistant Director of Planning and Development Date: Date: Planning Report DCA15 -0001 Page 3 of 3 Exhibit 2 Recommended Code Amendment Current Code Section 35.13.7.A.7.e: e. Tree Fund. The City shall administer the Tree Fund. Tree Funds shall be used to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory and to educate citizens and developers on the benefits and value of trees. ii. The applicant shall pay the fees established by City Council and published in the Development Review Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. iii. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, Industrial, or Multi - Family Residential developments, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat in the Denton County Clerks Office for all Single- family Residential Subdivisions. iv. Voluntary contributions for tree preservation shall be placed in the Tree Fund. New Section 35.13.7.A.7.e is amended to read in its entirety as follows: e. Tree Fund. The City shall administer the Tree Fund. Tree Funds shall be used to purchase, plant, and maintain trees , to preserve wooded property remain -sing in a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory, and to educate citizens and developers on the benefits and value of trees, all within the City of Denton. The Tree Fund may also be used to support programs for the public purpose of increasing the tree canopy within the City of Denton as approved by City Council. ii. Proceeds from the Tree Fund shall not be used to meet any requirements for preservation, mitigation, landscaping, buffering, streetscaping, or similar requirements in the Denton Development Code and the Denton Code of Ordinances. iii. The applicant shall pay the fees established by City Council and published in the Development Review Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. iv. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, Industrial, or Multi - Family Residential developments, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat in the Denton County Clerk's Office for all Single- family Residential Subdivisions. v. Voluntary contributions for tree preservation shall be placed in the Tree Fund Exhibit 3 ORDINANCE NO. 2015 - ----------------- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SECTION 35.13.7.A.7.e OF THE DENTON DEVELOPMENT CODE, PERTAINING TO USE OF THE TREE FUND; PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM FINE AMOUNT OF $2,000.00 FOR EACH VIOLATION THEREOF; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2002 -040, the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code "); and WHEREAS, Subchapter 35.13 of the Development Code provides for the use of Tree Fund deposits for tree mitigation, and the City desires also to use such deposits for the public purpose of increasing the tree canopy within the City; and WHEREAS, after providing notice and after conducting a public hearing on the day of , 2015, as required by law, the Planning and Zoning Commission recommended approval of changes to Subchapter 35.13 of the Development Code as described herein; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Denton Plan; and WHEREAS, the City Council has determined that the proposed amendment for the use of the Tree Fund is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly is of the opinion and finds that said amendment is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as true. SECTION 2. Subchapter 35.13.7.A.7.e of the Denton Development Code is amended as underlined to read as follows: Section 35.13.7.A.7.e: e. Tree Fund. The City shall administer the Tree Fund. Tree Funds shall be used to purchase, plant, and maintain trees on public property, to preserve wooded property that remainsing in a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory, and to educate citizens and developers on the benefits and value of trees, all within the City of Denton. The Tree Fund may also be used to support programs for the public purpose of increasing the tree canopy within the City of Denton as approved by City Council. Exhibit 3 ii. Proceeds from the Tree Fund shall not be used to meet any requirements for preservation, mitigation, landscaping, buffering, streetscaping, or similar requirements in the Denton Development Code and the Denton Code of Ordinances. iii. The applicant shall pay the fees established by City Council and published in the Development Review Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. iv. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, Industrial, or Multi- Family Residential developments, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat in the Denton County Clerk's Office for all Single- family Residential Subdivisions. v. Voluntary contributions for tree preservation shall be placed in the Tree Fund. SECTION 3. Any person, firm, partnership, corporation or other entity violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by a fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. In compliance with Section 2.09(c) of the Denton Charter, 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 — — — — — — — — — w 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY C Exhibit 3 �,r Exhibit 4 BOARD RESOLUTION At the meeting of the Board of Directors of Keep Denton Beautiful, Inc. (KDB) on July, 16, 2015, members heard a presentation regarding a series of new tree planting and distribution programs, to be funded through the City of Denton's Tree Mitigation Fund. In accordance with the KDB Bylaws, Article III. Section 4, board members submitted a vote via email, as requested by the Board President on August 3, 2015, and the following resolution was proposed and approved by the board: WHEREAS, the mission of Keep Denton Beautiful, Inc. is to engage our community in creating a clean and beautiful Denton; WHEREAS, the tree planting and distribution programs described herein support the mission of Keep Denton Beautiful, Inc.; WHEREAS, the Denton City Council authorizes the staff and board of Keep Denton Beautiful to oversee development of program applications and materials; Therefore, IT IS RESOLVED, that the Board hereby adopts the following rules and procedures for these new, Tree Fund- supported tree planting and distribution programs: NEIGHBORHOOD - HOSTED GIVEA WA YPROGRAM RULES Neighborhood groups and nonprofit organizations may apply to host their own small -scale tree giveaway event; Applicant groups may be granted between 100 and 300 trees to distribute to community members to plant on private property; Trees must be planted within the City of Denton city limits; Giveaway participants shall be residents of the City of Denton. Proof of residency shall be required; Participants receiving trees through this program shall plant trees on residential property, which the applicant either owns or resides in; Organizations that are approved to host a neighborhood giveaway must send a representative to a KDB Tree Planting Class before hosting their giveaway; Organizations that are approved to host a neighborhood giveaway must collect names, addresses, and proof of residency for all giveaway participants, and submit this information to Keep Denton Beautiful, Inc. as an attachment to the required follow -up report, due 6 months following the giveaway event date; Priority is given to neighborhoods that are tree needy, frequently used by pedestrians, or low to moderate income as determined by HUD; Exhibit 4 Priority is also given to groups that can ensure trees will be planted in publicly viewed areas, such as in a front yard; The Neighborhood- Hosted Giveaway Program will be made available in Fall of 2016, by which time the above - listed program guidelines may be adjusted or amended. B USINESS GIVEAWAY PROGRAM R ULES An application may be completed by a business or nonprofit organization; The planting site must be on a property that has a commercial use or is located in a commercially zoned district within the City of Denton; Applicants must represent one existing business entity; Each applicant must have staff available to work on the project by making arrangements to prep the sites and plant the trees, provide maintenance and submit a report to KDB; Applicants must file a water and maintenance plan with KDB; Each applicant may request a minimum of 2 and a maximum of 5 trees per business planting site; At least one group representative must attend a KDB Tree Planting Class before trees are planted; Selected groups must submit a Project Report to Keep Denton Beautiful, due by June 1, 2016. Trees must be planted in a publicly viewed area; Tree planting must take place in Fall of 2015; Further program dates and deadlines will be outlined in the Program Guidelines document for this program, made available through the KDB website and in hard copy, as requested. REDBUD TREE GIVEAWAY As part of Keep Denton Beautiful's existing (and separately funded) Denton Redbud Festival, the official Arbor Day celebration for Denton, up to 250 free Redbud trees will be distributed to festival attendees; Tree recipients must register their tree planting address and agree to respond to KDB - administered surveys inquiring about the health of their tree. CITIZEN FORESTER TRAINING Exhibit 4 To assist with tree care and public education duties associated with the tree planting and distribution programs described herein, KDB will partner with the Texas Forest Service, the Cross Timbers Urban Forestry Council, and the City of Denton to host a regional Citizen Forester Training class in Denton; KDB will be hosting this training, with training material content provided by the partner organizations, Texas Forest Service and Cross Timbers Urban Forestry Council. KDB will accept registrations for the program, oversee coordination of classroom space and food /refreshments, and confirm speakers and activities; The 2015 training course will begin with the first class session on September 9, 2015, and will end with the last class session on January 27, 2016; Participants in the class must register through KDB and pay a class enrollment fee of $50, payable to the Cross Timbers Urban Forestry Council; Participants must attend all 6 sessions of the training course to qualify for Citizen Forester Certification. CHILDREN'S ARBOR DAY ON- CAMPUS PLANTINGS As an enhancement to KDB's existing (and separately funded) Children's Arbor Day Program, schools applying for this program may request up to (2) 3 -inch caliper trees to be planted on the school campus, as well as mulch, watering bags, and printed urban forestry education materials; Schools in Denton ISD and private schools located within the City of Denton are eligible; School representatives applying for this program must clear tree planting locations with school Facilities personnel and the school principal or his /her designee. Signed: By: V President Date: 08/04/2015 M, w V) m L Ch 0 m Ch C C m a L L w om O L a a� m �i 00 C 'o L a G7 m L m Q7 M O Ln Ln O O O O O O O Cl I- C14 0 Cl 0 0 0 0 r- H O Ln m M O O110 d O O O O O M -i ry cr ui O ui m -i d I--� U Ln - p of V to CM CA 00 40, • O O O OO p -+ 0 - + H `nl`nl Ln 0 p co WO-I w 'n Ln Q: N L• N+ �-I Q Q a O Ln Ln 0 0 0 0 0 0 0 0 Cl I- fV 0 Cl 0 0 0 0 Ln M M O O (V �T O O I� h r q rri 0 m Lf -i m -i m O IV% N 4.q r� m � � � m d1 � 4.q OO � N • 0 0 0 00 p Q Q a O r- r 0 0 0 0 0 N N O M Ln Cl (V d O O M h o m O U,-j -i 4.q 4�q 4�q 4�q CNJ Ln 00 • Cl Cl Cl O p fV 0 rI O Cl fV Cl p fV N p Q Q a C � o " 0 � Q 3 -C U -0 � o m O) o �, ) o 3 o o c a E a o o > a Ln Q-a in LA o a, v " " Q1 -6 = N N z�� 4y, � v m m v Q Q v v C 3 O H in n Q •d c wuwo u u o -r u � � o o v Z Ln N O L M M M -4 Q City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -751, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Vicki Oppenheim regarding Denton Community Market - snapshot of emerging Denton. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -752, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Kati Trice regarding the Denton Community Market. BACKGROUND OPTIONS RECOMMENDATION ESTIMATED SCHEDULE OF PROJECT PRIOR ACTION/REVIEW (Council, Boards, Commissions) FISCAL INFORMATION BID INFORMATION EXHIBITS Respectfully submitted: (Name of Director) (Title) Prepared by: (Name) (Title) City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -755, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Ryan Crocker regarding the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -756, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Emily White regarding the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -757, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Jason Schreiber regarding the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -758, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Kimberly Bien regarding the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -759, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Jeffrey Rous regarding funding for the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -760, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Agatha Biens regarding the Denton Community Market. City of Denton Page 1 of 1 Printed on 8/13/2015