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HomeMy WebLinkAboutSeptember 15, 2015 Agendatru�Rltl �'� � k, City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com Tuesday, September 15, 2015 2:00 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, September 15, 2015 at 2:00 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 September 15, 2015. 3. Work Session Reports A. ID 15 -650 Receive a report, hold a discussion, and give staff direction regarding the 2015 -16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. Attachments: Exhibit 1 - Budget Resource & Expenditure Summary B. ID 15 -821 Receive a report, hold a discussion, and give staff direction regarding the Denton County Veterans Coalition's request to cosponsor the Stand Down event to be held in the Civic Center and Quakertown Park located at 321 E. McKinney Street October 22, 2015; and providing an effective date. Attachments: Exhibit 1 - Letter of Request C. SI15 -0020 Receive a report, hold a discussion, and give staff direction regarding the implementation of a Wayfinding Signage Project. Attachments: Exhibit 1 - Modified Theme Exhibit 2 - Proposed Wayfinding Directional Signage Exhibit 3 - Proposed Wayfinging Gateway Signaqe 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 -831 Deliberations regarding 551.072; Consultation 551.071. Real Property - Under Texas Government Code Section with Attorneys - Under Texas Government Code Section City ofDenton Page I Printed on 911012015 City Council Meeting Agenda September 15, 2015 Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the Daniel Lambert Survey, Abstract Number 784, located generally at the northeast corner of Mayhill Road and Colorado Boulevard, 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. (Mayhill Road Widening and Improvements project - Parcel M231 -Ray Hallford, Trustee) [ID 15 -833] B. ID 15 -834 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 generally located at the Southeast corner of E. McKinney Street and S. Mayhill Road, the affected tract located in the Morreau Forrest Survey, Abstract No. 417, 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. (Mayhill Road Widening and Improvements project - Parcel M088 -BCI Real Estate Ventures, LP) [ID 15 -835] C. ID 15 -865 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 -866] D. ID 15 -878 Consultation with Attorneys - Under Texas Government Code Section 551.071; City ofDenton Page 2 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to legal and economic development issues related to Rail Yard Partners, LTD. and economic development incentives and the acquisition of real property interests in the H. Sisco Survey, Abstract No. 1184, Denton, Denton County, Texas, generally located in the 600 block of E. Hickory. This discussion shall include commercial and financial information the City Council has received from Rail Yard Partners, LTD. 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 -879] E. ID 15 -654 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. F. ID 15 -857 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. G. ID 15 -858 Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive a briefing and presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding the proposed Professional Services Agreement (the "Agreement ") by and between the City of Denton, Texas and Burns & McDonnell Engineering Company, Inc., Kansas City. Missouri, regarding contractual matters that deal with plans, studies, proposals and analyses for system improvements to the City ofDenton Page 3 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Denton Municipal Electric system, said Agreement in the amount of $395,652, is in addition to the original contract in the amount of $264,648, not to exceed an aggregated contract total of $660,300. Consultation with the City's attorneys regarding legal issues associated with the Agreement 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. Discuss, deliberate, provide staff with direction, consider approval and take final action on said Agreement. H. ID 15 -859 Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive a briefing and presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding the proposed three -year Professional Services Agreement (the "Agreement ") by and between the City of Denton, Texas and Teague Nall & Perkins, Inc. regarding contractual matters that deal with plans, studies, proposals and analyses for system improvements to the Denton Municipal Electric system, said Agreement in the amount of $470,000, is in addition to the original contract in the amount of $450,000, not to exceed an aggregated contract total of $920,000. Consultation with the City's attorneys regarding legal issues associated with the Agreement 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. Discuss, deliberate, provide staff with direction, consider approval and take final action on said Agreement. L ID 15 -862 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with and provide direction to City's attorney's regarding legal issues and legal strategies associated with the City's pole attachments, pole attachment fees and outstanding pole attachment fees owed; 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 -863 Consultation 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 access, occupation and /or use of the City's right of way for fiber, fiber conduit, and /or pole attachments by Zayo Group, LLC; a public discussion of these legal issues and legal strategies would conflict with the duty of City ofDenton Page 4 Printed on 911012015 City Council Meeting Agenda September 15, 2015 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 -576 Denton Hispanic Heritage Month B. ID 15 -771 Constitution Week C. ID 15 -855 DFW Solar Tour Day 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. 1. ID 15 -791 Monica Jones regarding an issue with Animal Services and an issue with Community Improvement Services. 2. ID 15 -816 Bob Clifton regarding public servants. 3. ID 15 -898 Don Merki regarding Uber, electric vehicle charging stations, and electric vehicles for the City. C. Additional Citizen Reports - This section of the agenda permits any person not registered for a citizen report to make comments regarding public business on items not listed on the agenda. This is limited to four speakers per meeting with each speaker allowed a maximum of four (4) minutes. 4. BUDGET ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -727 Consider adoption of an ordinance of the City of Denton, Texas, levying the ad City ofDenton Page 5 Printed on 911012015 City Council Meeting Agenda September 15, 2015 valorem property tax of the City of Denton, Texas, for the year 2015, on all taxable property within the corporate limits of the city on January 1, 2015, and adopting a tax rate of $0.689750 per $100 of valuation for 2015; providing revenues for payment of current municipal maintenance and operation expenses and for payment of interest and principal on outstanding City of Denton debt; providing for limited exemptions of certain homesteads; providing for enforcement of collections; providing for a severability clause; and providing an effective date. Attachments: Exhibit 1 - Ordinance B. ID 15 -728 Consider adoption of an ordinance of the City of Denton, Texas, approving the 2015 tax rolls; and providing an effective date. Attachments: Exhibit 1 - Ordinance C. ID 15 -729 Consider adoption of an ordinance of the City of Denton, Texas, adopting the Fiscal Year 2015 -2016 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal year beginning on October 1, 2015, and ending on September 30, 2016; and declaring an effective date. Attachments: Exhibit 1 - Budget Resource & Expenditure Summary Exhibit 2 - Ordinance D. ID 15 -730 Consider adoption of an ordinance of the City of Denton, Texas, ratifying the adoption of the Fiscal Year 2015 -16 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal year beginning October 1, 2015, and ending on September 30, 2016 when the Budget will raise more revenue from property taxes than last year's budget; and providing an effective date. Attachments: Exhibit 1 - Ordinance 5. 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 — KK). 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 — KK 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 -598 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc. in the not -to- exceed amount of $757,073). City ofDenton Page 6 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1 -Staff Memo Exhibit 2 -NJPA Contract Award Exhibit 3- Ordinance Exhibit 4- Signed Contract B. ID 15 -705 Consider adoption of an ordinance approving the expenditure of funds for the purchase of a Verderflex Peristaltic Hose Pump System to be used for the application 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 5908- awarded to Verder, Inc. in the not -to- exceed amount of $196,207). The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 -Quote Exhibit 2 -Staff Memo Exhibit 3 -PUB Minutes Exhibit 4- Ordinance Exhibit 5- Signed Contract C. ID 15 -731 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, amending the City's Fund Balance Policy; and providing an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 - PUB Minutes Exhibit 2 - Ordinance D. ID 15 -732 Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2014 -2015 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the General Fund of seven hundred sixty -five thousand five hundred sixteen dollars ($765,516) for the purpose of purchasing an ambulance for Fire Station 7 and other equipment for various City departments; declaring a municipal purpose; providing a severability clause; an open meetings clause; and an effective date. Attachments: Exhibit 1 - Ordinance E. ID 15 -769 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the implementation of a Mobile Workforce Management Software Solution for Denton Municipal Electric (RFP 5821- awarded to Clevest Solutions, Inc. in the not -to- exceed amount of $366,000). The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 -PUB Agenda Information Sheet Exhibit 2- Evaluation Sheet Exhibit 3 -PUB Minutes Exhibit 4- Ordinance Exhibit 5- Signed Contract City ofDenton Page 7 Printed on 911012015 City Council Meeting Agenda September 15, 2015 F. ID 15 -786 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a funding agreement between the City and Fred Moore Day Nursery School to provide Community Development Block Grant funds for improvements to the facility at 821 Cross Timber Street, Denton, Texas; authorizing the expenditure of funds therefore, not to exceed $108,927; and providing for an effective date. Attachments: Exhibit 1 - Ordinance G. ID 15 -788 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving guidelines for operation of the City of Denton Home Improvement Program and eligibility criteria; authorizing expenditures in excess of $50,000 for projects meeting program guidelines and criteria; and providing for an effective date. Attachments: Exhibit 1 - Ordinance H. ID 15 -794 Consider approval of a resolution of the City of Denton, Texas approving a revised City employee benefits and services policy regarding Tuition Reimbursement; and declaring an effective date. Attachments: Exhibit 1- Redline Verson of Tuition Reimbursement Policy Exhibit 2- Proposed Version of Tuition Reimbursement Policy Exhibit 3- Resolution L ID 15 -822 Consider adoption of an ordinance approving a city sponsorship in an amount not to exceed $3,500.00 of in -kind services and resources for the Denton County Veterans Coalition's Stand Down event to be held in the Civic Center located at 321 E. McKinney Street October 22, 2015; and providing an effective date. Attachments: Exhibit 1 - Letter of Request Exhibit 2 - Proposed Ordinance J. ID 15 -828 Consider approval of a resolution of the City of Denton, Texas approving a revised City standards of conducts policy for employees regarding Use of Tobacco Products and Electronic Cigarettes; and declaring an effective date. Attachments: Exhibit 1 - Redline Version of Tobacco Products Policy Exhibit 2 - Proposed Version of Use of Tobacco Products & Electronic Cigarette Exhibit 3 - Resolution K. ID 15 -829 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Voluntary Dental and Vision Benefits for the City of Denton (RFP 5853- Dental Benefits awarded to Aetna Life Insurance Company in the three (3) year estimated amount of $3,182,450 with a 9% rate cap for Year 3 and Vision Benefits awarded to Davis Vision, Inc. in the three (3) year estimated amount of $334,100). The actual cost will be determined by the number of employees and retirees electing coverage and the level of coverage selected. This is a pass through cost that is paid by the employee. City ofDenton Page 8 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1- Dental Proposal Comparison Exhibit 2- Vision Proposal Comparison Exhibit 3- Ordinance L. ID 15 -830 Consider adoption of an ordinance approving a sixth amended agreement - Greater Denton Arts Council, to the agreement originally entered into by and between the City of Denton, Texas and the Greater Denton Arts Council, dated October 15, 1990; authorizing the City Manager to execute the sixth amended agreement - Greater Denton Arts Council; approving the expenditure of funds therefor; and providing for an effective date. Attachments: Exhibit 1 - GDAC Ordinance and Agreement Exhibit 2 - Funding Levels for GDAC and DCT M. ID 15 -832 Consider adoption of an ordinance approving an agreement - Denton Community Theatre by and between the City of Denton, Texas and the Denton Community Theatre, a Texas non -profit corporation; authorizing the City Manager to execute the agreement - Denton Community Theatre; approving the expenditure of funds therefor; and providing for an effective date. Attachments: Exhibit 1 - DCT Ordinance and Agreement Exhibit 2 - Funding Levels for GDAC and DCT N. ID 15 -837 Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a sewer main cost participation agreement between the City of Denton, Texas and the Carnegie Holding Company, LLC., D /B /A CHC Development, LLC. for the City's participation in the oversizing of sewer mains; and in accordance with the terms and conditions of this ordinance; authorizing the expenditure of funds therefor; and providing an effective date (not to exceed $33,304) Attachments: Exhibit 1 - Location Map Exhibit 2 - Oversized Sanitary Sewer System Difference Exhibit 3 - Sewer Participation Agreement Exhibit 4 - CIP Detail Sheet O. ID 15 -838 Consider adoption of an ordinance regarding the Denton Public Library amending section 2 -158 of the City of Denton, Texas, Code of Ordinances; to remove outdated formats and provide uniform check out length of time to all circulating materials; repealing all ordinances in conflict therewith; providing a severability clause; providing for a penalty clause; and providing for an effective date. Attachments: Exhibit 1- Redline Markup for Existing Ordinance Exhibit 2- Library Code Ordinance P. ID 15 -839 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Basic and Supplemental Life Insurance /Accidental Death and Dismemberment, Voluntary Short Term Disability, and Group Long Term Disability Insurance for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5852 -Basic Life City ofDenton Page 9 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Insurance /Accidental Death and Dismemberment awarded to Dearborn National Life Insurance Company in the three (3) year estimated amount of $1,036,000 ($136,000 City cost and $900,000 employee optional insurance cost) and Long Term Disability awarded to Dearborn National Life Insurance Company in the three (3) year estimated amount of $856,555 ($306,555 City cost and $550,000 employee optional disability insurance cost). The actual cost will be determined by the number of employees electing coverage as well as the employee's age and salary. The coverage for Supplemental Life Insurance and Short Term Disability Insurance is voluntary and is determined by the actual voluntary employee participation. This is a pass through cost that is paid by the employee. Attachments: Exhibit 1 -Life and Disability BAFO and Evaluation Exhibit 2- Ordinance Q. ID 15 -842 Consider approval of a resolution approving the City of Denton's Strategic Plan, Key Performance Indicators, and Key Action Steps for FY 2015 -16; and providing for an effective date. Attachments: Exhibit 1 - FY 2014 -15 Strategic Plan Exhibit 2 - Resolution with FY 2015 -16 Strategic Plan. KPIs and Key Action Stet R. ID 15 -843 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the North Central Texas Council of Governments ( NCTCOG) under Section 791.001 of the State of Texas Government Code, to authorize the City of Denton to participate in the NCTCOG Geographic Information Systems Planimetric Mapping Update and Contour Data; authorizing the expenditure of funds therefor; and providing an effective date (File 5590 - Interlocal Agreement with the North Central Texas Council of Governments in the not -to- exceed amount of $86,091.50). Attachments: Exhibit 1- Ordinance S. ID 15 -844 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the North Central Texas Council of Governments ( NCTCOG) under Section 791.001 of the Texas Government Code, to authorize the City of Denton to obtain Digital Orthophotography data and LiDAR and contour data from the NCTCOG Geographic Information System; authorizing the expenditure of funds therefor; and providing an effective date (File 5930 - Interlocal Agreement with the North Central Texas Council of Governments in the not -to- exceed amount of $57,856.50). Attachments: Exhibit 1- Ordinance with Interlocal Agreement T. ID 15 -845 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing and approving a thirty -six month lease agreement with Ricoh -USA, Inc. for production printing equipment for the City of Denton Reprographics division as approved by the State of Texas Department of Information Resources (DIR) Contract Number DIR -TSO- 3041); providing for the expenditure of funds therefor; and providing an effective date (File 5926 -Lease of Production Printing Equipment awarded to Ricoh USA, Inc. in the annual lease amount of $85,758.36 for a thirty -six month total of $257,275.08). City of Denton Page 10 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1- Pricing Comparison Exhibit 2 -BAFO and Final Pricing Exhibit 3- Ordinance Exhibit 4- Contract U. ID 15 -846 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Tymco Model 600 Street Sweeper for the City of Denton Drainage Department; and providing an effective date (File 5929- awarded to Tymco, Inc. in the amount of $201,523.50). Attachments: Exhibit 1- Single Source Memo Exhibit 2- Comparison Pricing Exhibit 3- Ordinance V. ID 15 -847 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Sewer Camera Trailer for the City of Denton Wastewater Collections Department; and providing an effective date (File 5935- awarded to R.S. Technical Services, Inc. in the amount of $133,400). Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Ordinance W. ID 15 -848 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a purchase order through The Interlocal Purchasing System (TIPS) Cooperative Purchasing Program Contract402042315 for the partial replacement of the roof at the City of Denton Civic Center by way of an Interlocal Agreement with the City of Denton; and providing an effective date (File 5923- awarded to CBS Mechanical, Inc. in the amount of $153,308). Attachments: Exhibit 1- Comparison Exhibit 2 -Quote from CBS Mechanical Exhibit 3- Ordinance Exhibit 4- Contract X. ID 15 -849 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 physical assessment services for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 5292- awarded to Huguley Assessment Center in the three (3) year not -to- exceed amount of $347,040). Attachments: Exhibit 1- Ordinance Exhibit 2- Professional Services Agreement Y. ID 15 -851 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year service subscription for the CodeRED Emergency Notification System and CodeRED Weather Warning Service, which is available from only one source and in accordance with Chapter 252.022 of the City of Denton Page 11 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3964 - awarded to Emergency Communications Network, Inc. for a three (3) year not -to- exceed amount of $134,000). Attachments: Exhibit 1- Service Aareement Exhibit 2- Addendum to Agreement Exhibit 3 -Staff Memo Exhibit 4 -Sole Source Memo Exhibit 5- Ordinance Exhibit 6- Signed Agreement Z. ID 15 -854 Consider adoption of an ordinance of the City of Denton, Texas, granting Oaktopia, pursuant to Section 17 -20 of the Code of Ordinances of the City of Denton, Texas, an exception to the limitations imposed by that section with respect to hours of operation of an amplified loudspeaker system; and setting an effective date. Attachments: Exhibit 1 - Oaktopia Noise Exemption Request Exhibit 2 - Ordinance AA. ID 15 -856 Consider approval of a resolution allowing DI2- dentonl, LLC, DBA Lone Star Attitude Burgers and Oak Street Draft House LLC, to be allowed to sell alcoholic beverages at Oaktopia, September 25- 27, 2015, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. Attachments: Exhibit 1- Letter of Request Exhibit 2- Resolution BB. ID 15 -866 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas, ( "City "), as buyer and WILLIAMS RENTALS, LLC, (the "Owner "), as seller, 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; (the "Property Interests ") for the purchase price of Two Hundred Ninety Nine Thousand Five Hundred Dollars and No Cents ($299,500.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefor; (ii) providing a savings clause; and (III) providing an effective date. (Fire Station No. 4 Rebuild Project) Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map Exhibit 3 - Ordinance CC. ID 15 -867 Consider approval of a resolution by the City Council of the City of Denton, Texas consenting to the withdrawal of the North Texas Higher Education Authority (NTHEA) from acting for and on its behalf and rescinding its request that the authority act for and on its behalf, and providing an effective date. City of Denton Page 12 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1 Resolution DD. ID 15 -871 Consider adoption of an ordinance amending the schedule of electric rates contained in Ordinance No. 2014 -285 for electric service; amending the provisions of the Residential Service Rate Schedule (Schedule RES); amending the provisions of the Residential Renewable Energy Service Rider (Schedule RG); amending the provisions of the Residential Prepaid Service Schedule (Schedule RPP); adding the provisions of the Residential Time Of Use Schedule (Schedule RTOU); amending the provisions of the General Service Small Schedule (Schedule GSS); amending the provisions of the General Service Medium Schedule (Schedule GSM); amending the provisions of the General Service Large Schedule (Schedule GSL); amending the provisions of the General Time of Use Schedule (Schedule TGS); amending the provisions of the Local Government Small Schedule (Schedule G2); amending the provisions of the Local Government Schedule (Schedule G1); amending the provisions of the Weekend Service Schedule (Schedule WK); amending the provisions of the Athletic Field Schedule (Schedule AF); amending the provisions of the Street Lighting Schedule (Schedule LS); amending the provisions of the Traffic Lighting Schedule (Schedule LT); amending the provisions of the Unmetered School Zone /Crossing Flashers Schedule (Schedule UFL); amending the provisions of the Unmetered Traffic Lights Schedule (Schedule ULT); amending the provisions of the Unmetered Security Camera Schedule (Schedule USC); adding the provisions of the Unmetered Wi -Fi Devices Schedule (Schedule UWF); amending the provisions of the Other Lighting Schedule (Schedule LO); amending the provisions of the Security Lighting Schedule (Schedule DD); amending the provisions of the Decorative Downtown Lighting Schedule (Schedule DDL); amending the provisions of the Non Standard Street Lighting Schedule (Schedule DSL); amending the provisions of the Temporary Service Schedule (Schedule T1); amending the provisions of the GreenSense Energy Efficiency Rebate Program and renaming it the "GreenSense Incentive Program" (Schedule GRP); amending the provisions of the Energy Cost Adjustment Schedule (Schedule ECA); amending the provisions of the Renewable Cost Adjustment (Schedule RCA); amending the provisions of the Transmission Cost Recovery Factor Schedule (Schedule TCRF); amending the provisions of the Dark Fiber Schedule (Schedule DFR); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhitit 1 2016 Rate Comparison Exhibit 2 FY 2015 -2016 DME Rate Ordinance EE. ID 15 -872 Consider adoption of an ordinance amending the schedule of water rates contained in Ordinance No. 2014 -287 for water service rates and water rates; amending the residential water service rate (Schedule WR); amending the commercial /industrial water service rate (Schedule WC); amending the metered water from fire hydrant rate (Schedule WFH); amending the wholesale treated water service rate to the Upper Trinity Regional Water District (Schedule WW); amending the wholesale raw water service rate to Upper Trinity Regional Water District (Schedule WRW); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). City of Denton Page 13 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1 Final Water Rate Ordinance FF. ID 15 -873 Consider adoption of an ordinance amending the schedule of wastewater rates contained in Ordinance No. 2014 -288; providing for an amendment in the rates for residential wastewater service (Schedule SR); amending the mobile home park wastewater service (Schedule SMH); amending the commercial and industrial wastewater service (Schedule SC); amending the commercial /industrial wastewater service which measures with dedicated water meters (sub- meters) (Schedule SCD); amending the commercial /industrial wastewater service which measures with dedicated water meters (sub- meters) (Schedule SCS); amending the equipment services facilities and restaurant & food service establishments wastewater service (Schedule SEE); amending the metered wastewater inside and outside corporate limits (Schedule SM); amending the sale of treated wastewater effluent (Schedule SGE); amending the treated effluent wastewater tap fees (Schedule STE); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 Final Wastewater Rate Ordinance GG. ID 15 -875 Consider adoption of an ordinance of the City of Denton, Texas providing for the schedule of miscellaneous fees, deposits, billings and procedures for administrative services to city utilities customers contained in Ordinance No. 2014 -286; providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1 Final Miscellaneous Rate Ordinance HH. ID 15 -877 Consider adoption of an ordinance of the City of Denton, Texas amending the schedule of rates for solid waste service contained in ordinance no. 2014 -289. as authorized by Chapter 24 of the Code of Ordinances of the City of Denton, Texas; providing that the provisions of sections 26 -3, 26 -4, 26 -5, 26 -7, 26 -8(a), and 26 -9 of the Code of Ordinances of the City of Denton, Texas shall expressly apply to City of Denton solid waste and recycling services; providing for amendments to the residential refuse &recycling collection services rates; providing for amendments to the commercial refuse and recycling collection services rates; providing for an amendment to the processing and disposal services rates; providing for an amendment to the definition of "container weight limits" in the solid waste & recycling services definitions; providing for a repealer; providing for a severability clause; providing an effective date. The Public Utilities Board recommends approval (4 -0). Attachments: Exhibit 1- FY 2015 -16 SW &R Rate Ordinance IL ID 15 -890 Consider approval of the minutes of July 28, August 4, August 6, August 11, August 18 and August 25, 2015. City of Denton Page 14 Printed on 911012015 City Council Meeting Agenda September 15, 2015 Attachments: Exhibit 1 - July 28. 2015 minutes Exhibit 2 - August 4. 2015 minutes Exhibit 3 - August 6. 2015 minutes Exhibit 4 - August 11. 2015 minutes Exhibit 5 - August 18. 2015 minutes Exhibit 6 - August 25. 2015 minutes JJ. ID 15 -891 Consider adoption of an ordinance approving an agreement between the City of Denton, Texas, and the Denton Chamber of Commerce regarding an Economic Development Partnership; and providing an effective date. Attachments: Exhibit 1- Ordinance and Contract KK. ID 15 -904 Consider adoption of an ordinance approving the expenditure of funds for the purchase of three (3) self check machines, three (3) disc media unlockers, and associated maintenance and license costs for three (3) years for the City of Denton Public Library System which are 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 5916- awarded to 3M Library Systems for self check machines and disc media unlockers in the amount of $48,399.54 and three (3) year maintenance and license costs in the estimated amount of $92,325.10 for a total award in the not -to- exceed amount of $140,724.64). Attachments: Exhibit 1 -Quote for Self Check Machines Exhibit 2- Maintenance Estimate Breakdown Exhibit 3 -Staff Memo Exhibit 4 -Sole Source Letter Exhibit 5- Ordinance 6. ITEMS FOR INDIVIDUAL CONSIDERATION — CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS A. ID 15 -833 Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple title to two 0.092 acre tracts, for the public use of expanding and improving Mayhill Road, a municipal street and roadway generally located in the Daniel Lambert Survey, Abstract No. 784, City of Denton, Denton County, Texas, at the Northeast corner of Mayhill Road and Colorado Boulevard, as more particularly described on the attached "Exhibit "A" (the "Property Interests "); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; making findings; providing a savings clause; and providing an effective date. (Mayhill Road Widening and Improvements project: Parcel M231 -Ray Hallford, Trustee) Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map Exhibit 3 - Ordinance B. ID 15 -835 Consider adoption of an ordinance finding that a public use and necessity exists to City of Denton Page 15 Printed on 911012015 City Council Meeting Agenda September 15, 2015 acquire fee simple title to a 1.509 acre tract generally located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas, at the Southeast corner of E. McKinney St. and S. Mayhill Road, and more particularly described on the attached "Exhibit "A" (the "Property Interests "), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; making findings; providing a savings clause; and providing an effective date. (Mayhill Road Widening and Improvements project: Parcel M088 -BCI Real Estate Ventures, LP) Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map Exhibit 3 - Ordinance 7. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -738 Consider nominations /appointments to the Economic Development Partnership Board. Attachments: Exhibit 1 -EDP Board Ordinance B. ID 15 -880 Consider nominations /appointments to the City's Boards and Commissions: Parks, Recreation and Beautification Board. C. ID 15 -793 Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to submit an application and all other necessary documents to obtain a grant under the Texas Department of Housing and Community Affairs' Amy Young Barrier Removal Program, and take all other actions necessary to implement the program; and providing for an effective date. Attachments: Exhibit 1 Resolution D. ID 15 -879 Consider adoption of an ordinance of the City of Denton, Texas approving an Economic Development Agreement for an incentive grant between the City of Denton and Rail Yard Partners, LTD; and a Commercial Lease Agreement between the City of Denton and Rail Yard Partners, LTD. involving development at the property located at 608 East Hickory Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreements subject to final language approval by the City Attorney; and providing an effective date. Attachments: Exhibit 1 - Rendering and Space Layout Exhibit 2 - Downtown TIF Proiect Plan Exhibit 3 - 01 -16 -15 TIF Meeting Minutes Exhibit 4 - 10 -14 -14 EDP minutes Exhibit 5 - Lease Agreement Exhibit 6 - Lease Agreement - Site Plan Exhibit 7 - Incentive Agreement w Exhibits Exhibit 8 - Ordinance 8. PUBLIC HEARINGS City of Denton Page 16 Printed on 911012015 City Council Meeting Agenda September 15, 2015 A. Z15 -0008 & S15 -0006 B. ID 15 -823 Attachments: Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a change in zoning classification from Neighborhood Residential 4 (NR -4) to Neighborhood Residential 2 (NR -2) and approving a Specific Use Permit (SUP) for an Equestrian Facility on approximately 1.003 acres of property, generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (Z15 -0008 and S15- 0006). The Planning and Zoning Commission recommends approval of this request (7 -0). Exhibit 1 - Staff Analvsis Exhibit 2 - Site Location, Aerial Map Exhibit 3 - Zoning Map Exhibit 4 - Future Land Use Map Exhibit 5 - Permitted Use in Neiahborhood Residential 4 Exhibit 6 - Permitted Uses in Neighborhood Residential 2 Exhibit 7 - Applicant's Project Narrative Exhibit 8 - Zoning Exhibit Exhibit 9 - Public Notification Map and Community Respones Exhibit 10 - Planning and Zoning Commission Draft Minutes Exhibit 11 - Draft Ordinance Hold a public hearing and consider adoption of an ordinance granting approval, in accordance with Chapter 26 of the Texas Parks and Wildlife Code, of the non -park use of a part of North Lakes Park for the purpose of installing and maintaining a sanitary sewer line for the Vista Del Arroyo Offsite Utilities Project; providing for a notice by the City of Denton, Texas, of non -park use for installation and maintenance of sanitary sewer line and reservation of easement in the event of sale of park; and providing an effective date. The Parks, Recreation and Beautification Board recommends approval (5 -0). Exhibit 1 Excerpt of Park Board Minutes 8 -3 -15 Exhibit 2 Sewer Reroute Construction Drawing Exhibit 3 Chapter 26 Legal Ad Notification Exhibit 4 Legal Desctiption and Survey Exhibit 5 Ordinance C. PDA15 -0003 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding amendments to a Concept Plan and Detail Plan of Planned Development 176 (PD -176) to depict a Child Day Care facility on approximately 1.38 acres. The subject property is generally located on the south side of Robinson Road, approximately 220 feet east of Teasley Lane within a Planned Development 176 (PD -176) zoning district; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. City of Denton Page 17 Printed on 911012015 City Council Meeting Agenda September 15, 2015 (PDA15- 0003). The Planning & request (7 -0), subject to the conditions. Attachments: Exhibit 1 - PZ Staff Report Exhibit 2 - Site Location - Aerial Map Exhibit 3 - Exhibit 4 - Zoning Map Future Land Use Map Exhibit 5 - Previous Concept Plan Exhibit 6 - Previous Detailed Plan Exhibit 7 - Exhibit 8 - Exhibit 9 - Concept Plan Detailed Plan Elevations & Rendering Exhibit 10 - PH Notification Map Exhibit 11 - Draft Ordinance Zoning Commission recommends approval of this 9. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. 1. ID 15 -900 Willie Hudspeth regarding City Hall. 2. ID 15 -906 Patrick Kelley regarding a new skate park. 10. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting 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 City of Denton Page 18 Printed on 911012015 City Council Meeting Agenda September 15, 2015 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 19 Printed on 911012015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -650, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: September 15, 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 has held work sessions on the proposed budget on August 11', August 18th, August 25th, and September 1st. The following summarizes the changes from the City Manager's proposed budget that are included in the budget for City Council consideration at tonight's meeting: The following changes were made to the Proposed Budget as directed by City Council: General Fund - City Manager's FY 2015 -16 Proposed Revenues $109,458,464 • Lower proposed tax rate ($0.689750) $ (558,515) • Revenue transferred to Economic Development Fund $ (150,000) Revised General Fund Revenues $108,749,949 City Manager's FY 2015 -16 Proposed Expenditures • Reallocate Council Funding Priority Amount • Police Body Cameras Community Event Center Improvements • Homelessness Coordinator position (City share) Cash funding of Police vehicles (removed) City -wide Facility Space Study (removed) • Building lease payments for Development Services GIS Technician position in Planning Veterinary Technician (contract services /Animal Shelter) • Bike Racks Revised General Fund Expenditures $109,458,464 $ (959,188) $ 171,200 $ 103,000 $ 40,000 $ (250,000) $ (200,000) $ 90,000 $ 66,166 $ 62,816 $ 11,907 $108,594,365 City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -650, Version: 1 Other Funds Increases (Decreases) - • $ 150,000 Create Economic Development Incentive Fund • $ 90,000 McKinney Street Cross Walk from Traffic Safety Fund • $ 22,430 South By Southwest Marketing from Tourist & Convention Fund • $ 8,476 Parks Maintenance for Hickory Street from Tree Mitigation Fund • $ 25,428 Parks Maintenance for Hickory Street from Downtown TIRZ Fund • ($ 2,591) Downtown TIRZ Fund revenue from lower proposed tax rate ($0.689750) • ($ 2,138) General Debt Service Fund due to utility bond sale refunding Staff has also revised the General Government Capital Improvement Program by $3,275,000 in FY 2015 -16. While preparing the proposed budget, staff inadvertently included the construction of Fire Station 44 in a later year, but it should be in the FY 2015 -16 CIP. Additionally, staff has revised the CIP to include $405,000 for the construction of the Exposition parking lot by reducing funding for the facility maintenance program. Finally, staff has removed $250,000 in revenue funding in the CIP for the replacement of police vehicles. In addition to the above changes, the City Council also directed staff to repurpose the previously included amount of $150,000 for Convention Center marketing in the Tourist & Convention Fund to Community Event Center Improvements. The purpose of this agenda item is to provide the City Council with an additional opportunity for questions and dialogue. If you have any questions, or need additional information, please let me know. EXHIBITS 1. Revised Budget Resources & Expenditure Summary Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 2 Printed on 9/10/2015 General Fund $ 97,962,829 $ 102,846,640 $ 103,679,116 $ 108,749,949 General Debt Service Fund 44,389,247 54,014,287 53,988,492 63,847,681 Electric Fund 166,263,221 177,044,830 170,230,860 175,753,887 Water Fund 40,061,764 46,202,271 43,791,498 46,681,823 Wastewater Fund 28,844,440 30,925,904 30,922,320 32,354,231 Solid Waste Fund 26,584,941 27,802,592 28,656,727 31,192,530 Airport Fund 2,923,988 4,567,377 3,323,182 2,608,900 Technology Services Fund 8,729,715 11,320,223 11,237,321 11,159,626 Materials Management Fund 8,168,647 11,864,317 12,783,420 13,614,839 Fleet Management Fund 10,123,874 12,701,893 10,491,466 11,539,309 Risk Retention Fund 2,986,949 3,810,614 3,806,925 3,741,283 Health Insurance Fund 22,911,967 27,490,268 26,363,937 29,617,121 Engineering Services Fund 4,260,887 4,658,066 4,660,081 4,906,201 Street Improvement Fund 8,254,307 10,181,026 10,283,436 11,115,423 Recreation Fund 1,764,049 2,267,084 2,108,351 2,204,123 Tourist & Convention Fund 1,990,739 2,134,406 2,028,586 2,145,064 Police Confiscation Fund 329,680 204,200 198,500 183,500 Traffic Safety Fund 1,648,083 1,700,000 1,809,760 1,600,000 Parks Gas Well Fund 322,111 200,100 200,000 150,100 Tree Mitigation Fund 1,173,508 544,078 544,078 687,153 Public Education Government Fund 358,245 377,750 374,449 384,500 McKenna Trust Fund 47,000 1,000 1,000 1,000 Downtown Tax Increment Financing Fund 146,590 245,056 145,506 269,580 Westpark Tax Increment Reinvestment Zone Fund - 3,083 1,336 4 Miscellaneous Special Revenue Funds 131,075 127,000 200,927 229,000 Park Land Dedication Trust Fund 314,568 700,000 700,000 700,000 Park Development Trust Fund 271,675 500,000 500,000 1,700,000 Police Academy Fund 25,530 45,000 25,078 50,000 Downtown Reinvestment Fund 100,418 173,500 140,500 217,918 Economic Development Fund - - - 150,000 TOTAL OPERATING RESOURCES $ 481,090,047 $ 534,652,565 $ 523,196,852 $ 557,554,745 Grant Program 5,011,718 3,975,555 3,037,153 5,381,486 Capital Improvements Program (2) 99,192,715 385,296,443 109,484,723 405,609,000 TOTAL RESOURCES $ 585,294,480 $ 923,924,563 $ 635,718,728 $ 968,545,231 2013-14 2014-15 2014-15 2015-16 EXPENDITURES ACTUAL BUDGET ESTIMATE PROPOSED General Fund $ 97,879,718 $ 102,846,640 $ 103,322,156 $ 108,594,365 General Debt Service Fund 44,235,213 54,014,287 53,871,393 63,847,681 Electric Fund 166,263,221 177,044,830 170,230,860 175,753,887 Water Fund 40,061,764 46,202,271 43,791,498 46,681,823 Wastewater Fund 28,821,681 30,925,904 30,531,022 32,340,185 Solid Waste Fund 26,584,941 27,802,592 27,796,163 31,190,615 Airport Fund 2,593,359 4,567,377 3,323,182 2,608,900 Technology Services Fund 8,729,715 11,320,223 11,237,321 11,159,626 Materials Management Fund 8,164,183 11,864,317 11,864,317 13,614,839 Fleet Management Fund 10,096,762 12,654,694 10,491,466 11,539,309 Risk Retention Fund 2,875,148 3,810,614 3,806,925 3,741,283 Health Insurance Fund 21,510,685 27,490,268 26,363,937 29,617,121 Engineering Services Fund 3,636,032 4,636,101 4,634,257 4,906,201 Street Improvement Fund 8,254,307 10,181,026 10,181,026 11,115,423 Recreation Fund 1,749,996 2,267,084 2,108,351 2,204,123 Tourist & Convention Fund 1,738,528 2,134,406 1,886,612 2,167,494 Police Confiscation Fund 329,680 198,500 198,500 183,500 Traffic Safety Fund 1,420,525 1,617,400 1,617,400 1,537,650 Parks Gas Well Fund 140,500 200,000 200,000 150,000 Tree Mitigation Fund - 544,078 544,078 695,629 Public Education Government Fund 286,451 377,750 374,449 384,500 McKenna Trust Fund 47,000 - - - Downtown Tax Increment Financing Fund - - - 103,428 Westpark Tax Increment Reinvestment Zone Fund - - - - Miscellaneous Special Revenue Funds 99,652 102,000 61,613 229,000 Park Land Dedication Trust Fund 24,173 700,000 700,000 700,000 Park Development Trust Fund 119,997 500,000 500,000 1,700,000 Police Academy Fund 47,697 45,000 22,325 50,000 Downtown Reinvestment Fund 15,500 173,500 140,500 217,918 Economic Development Fund 150,000 TOTAL OPERATING EXPENDITURES $ 475,726,428 $ 534,220,862 $ 519,799,351 $ 557,184,500 Grant Program 5,011,718 3,975,555 3,037,153 5,381,486 Capital Improvements Program (Z) 99,192,715 385,296,443 109,484,723 405,609,000 TOTAL EXPENDITURES $ 579,930,861 $ 923,492,860 $ 632,321,227 $ 968,174,986 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 1'&IM111iffidrith w ww.cityofdenton.com D EN'FON File #: ID 15 -821, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. Date: September 15, 2015 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the Denton County Veterans Coalition's request to cosponsor the Stand Down event to be held in the Civic Center and Quakertown Park located at 321 E. McKinney Street October 22, 2015; and providing an effective date. BACKGROUND The City is being asked to sponsor up to $3,500 of in -kind services and resources for the first Denton County Veterans Coalition's Stand Down event to provide assistance to the homeless and low income veterans in Denton County, which includes a waiver of $3,500 of the $4,185 Civic Center rental fee. The Stand Down is organized by the Denton County Veterans Coalition and various volunteers. Attendance is expected to be approximately 200 -250. The Stand Down will provide an opportunity for homeless and very low income veterans to receive services and supplies that they ordinarily don't have access to. Examples of free services to be provided to the veterans are: haircuts, dental services, meals, counseling, and several other services. Other non - profits and local/state agencies plan to provide informational materials to the veterans who might benefit from their services. PRIOR ACTION /REVIEW The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships wherein City facilities or City services are requested at a reduced rate or at no cost require Council approval. This is the first time the Denton County Veterans Coalition's Stand Down event is being presented to Council for approval. FISCAL INFORMATION The cost to the City to sponsor this event is $3,500 and includes use of the Civic Center and Quakertown Park for which the City is recognized as a sponsor at a level equal to this value. EXHIBITS Letter of Request Respectfully submitted: Emerson Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 1 of 1 Printed on 9/10/2015 Exhibit 1 August 14, 2015 City of Denton Director of Parks and Recreation 601 E. Hickory St. Ste B Denton, Texas 76205 RE: Request for Co- sponsorship Mr. Vorel, The Denton County Veterans Coalition has the opportunity to sponsor the first ever military Veterans Stand Down in our county. The US Veterans Administration conducts annual stand down events for homeless Veterans in Dallas, Fort Worth and many other cities across the country. Stand Downs provide an opportunity for homeless and very low income Veterans to receive services and supplies that they ordinarily don't have access to. In addition, we intend to provide live music and food for the Veterans who attend. We anticipate other non - profits and local /state agencies to attend and provide informational material to Veterans who might benefit from their services. There is probably no better venue for this event than the Denton Civic Center and the adjacent park area. However, we have a price quote of $4,185 to use the facility. Our Coalition achieved federal non- profit status less than a year ago and has limited operating funds. We would appreciate it if the City of Denton would provide $3500 as a co- sponsor. The Military Veteran Peer Network of Denton County has agreed to cover the rest. The Stand Down is scheduled for Thursday, October 22, 2015. We will reach out to all homeless and low income Veterans in Denton County and encourage them to attend. We anticipate about 200 -250 Veterans and family members will attend. If you have any questions, please contact Ginger Simonson who is our project manager for the Stand Down Event. Her cell # is 817 - 683 -2870 and 11, ' „ @, „IT fl. rn. Thank ou fir your consideration. Singe ely,° D ,,.lsen Secrel�ry, Denton County Veterans Coalition r _Z47 User #; Denton City of PAM i i A , NITER A •, " Contract : 34634 User: 2244607 Date: 10 Aug 2015 Status. Tentative 1) Purpose of Use Meeting /Seminar Veteran Stand Clown 11) Conditions of ue® 111) ate(s) and Tlme(s) of Use If of Bookings: 7 Starting: Wed 21 Oct 15 04:00 PM Expected: 0 Ending: Thu 22 Oct 15 04:00 PIM Facility Day Start Date Start Time End Date End Time Fee BA Fee Xtra Fee Total Civic Ctr - Meeting Rooms 1&2 Wed 21 Oct 2015 04:00 PM 21 Oct 2015 07: $150.00 0.00 $0.00 $150.00 Civic Ctr - Rotunda Wed 21 Oct 2015 04:00 PM 21 Oct 2015 07:00 P ;240.00 29.49 $29.48 $270.00 Civic Ctr - Kitchen Thu 22 Oct 2015 07:00 AM 22 Oct 2015 04:00 P $135.00 0.00 $0.00 $135.00 Civic Ctr - Meeting Rooms 1 &2 Thu 22 Oct 2015 07 :00 AM 22 Oct 2015 04 :00 P $450.00 0.00 $0.00 $450.00 Civic Ctr - Outdoor Plaza Thu 22 Oct 2015 07:00 AM 22 Oct 2015 P $270.00 0.00 $0.00 $270.00 Civic Ctr - Rotunda Thu 22 Oct 2015 07:00 AM 22 Oct 2015 04 :00 P $720.00 68432 $664.32 $1,410.00 Civic Cir - South aide of Quaker Thu 22 Oct 2015 07:00 AM 22 Oct 2015 04 :00 PM 1,500.00 0.00 $0.00 $1,500.00 Town Park Iv) Additional Fees Extra Fee • Bookings Hours Quantity Charge Building Attendant -Civic Center 12:00 3 $206.38 Cleaning -Large 9:00 1 $147.42 Security Fee -Civic Center 9:110 2 $360. 30:00 6 $713.80 v) Payment Method Rental Fees Extra Fees Tax Total Rental Total Total Applied alace $ 3,465,00 $ 71160 $ 6.20 $ 4,195.00 $0.00 $4,185.00 All remaining charges and balances are due upon completion (30 days prior to rental) and signing of this lease agreement. A damage deposit of is due at the start of the rental, and will be returned at the conclusion of the rental , if no damages result from the event, or, if extra cleaning, additional security or extended rental fees are not incurred. Balance of nc payable ii The undersigned abide by ., Immediate Denton, These rules are part of your rental agreement with the City, failure to abide by the policies and rules shall be grounds for termination and forfeiture of a; fees at the sole discretion Non-enforcement constitute Civic Center Nam Civic Center 321 E. Mckinney St Tide: Denton TX 76201 Home: () Business: (940)349 ®7275 City of Denton Parks & Recreation Date: Date: User 2244607 City of Denton EL"VRAP MM FIEW-01n, MA Contract M 34634 Date: 10 Aug 2015 User: 2244607 Status: Tentative Printed., 10 Aw 2015, 11:29 AM User., 2244607 Contract #: 34634 Date: 10 Aug 2015 City of Denton NVVR'AL# M-i (7,31CIRFIVO Mot rc= �_ � User: 22-AT607 Status: Tentative f— A $200 non-refundable deposit is due upon booking. The remaining rental balance Is due 4 weeks prior to scheduled rental date. Rentals scheduled with less than 4 weeks notice will require payment In full, upon bookirl 2. Rental cancellations must be submitted in person. Cancellations made less than 4 weeks before the scheduled rental will forfeit their deposit and will be refunded any room rental fees that were paid In advance. Cancellations made with less than 2 weeks notice will forfeit 100% of room rental fees. 4. The Civic Center, park, grounds, and parkling areas are accepted on an "as is" basis and may not be altered in any way by the renter or guests, All rentals must be concluded prior to 2:00 a,m. S. The maximum number of people the Civic Center can accommodate is 600. This includes parking lots, loading areas, park/grass/lawn areas, sidewalks, and building entry/exit areas. Tables and chairs for 200 people are included in the Civic Center price. Additional tables and chairs are available for an additional rental fee. I' I 1 0 4, 'A J I 7, The department/PARD reserves the right to cancel use of the facty at the sole discretion of the city. If cancellation is Initiated by PARD, staff will secure alternate site (if available). If unable to do so, lessee may reschedule or receive a full refund. Rentals for events that are open to the public will require a certificate of liability Insurance to be kept on file witV the signed rental agreement. Liability Insurance must cover a minimum of $500,000 per occurrence and shall be subject to approval by the city. User 60 City of Denton t, Contract ; 34634 User: Date: 10 Aug 2016 Status: Tentative 4 Renters responsible for bringing own audio and or sound equipment. I provide equipment. 20. If the kitchen is used, the renter/caterer has total responsibility for cleaning of the room and appliances and disposal ,1 comply with this requirement will result In the retention provided of the damage deposit. Kitchen and appliances are provided on an "as-is" basis for food preparation. Appliances are as a courtesy and their reliability cannot be guaranteed. 21. The lessee agrees to assume all liability and hold harmless and Indemnify the City of Denton and it's agents, officers, employees, and representatives from any and all liability arising out of the lessee's use of Denton Parks and Recreation Department 22. These rules are part of your rental agreement with the City, failure to abide by the policies and rules shall be grounds for Immediate terming on of the rental and forfeiture of rental fees at the sole discretion of the City, Non-enforcement by the City oesn ®t constitute a waiver of the City's rights under this contract. User: 2244607 City of Denton Wot�l F1 . . . ..... .. . Contract M 34634 User: 2244607 Date: 10 Aug 2015 Status: Tentative �t� City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: S115 -0020, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the implementation of a Wayfinding Signage Project. BACKGROUND On August 17, 2010, the City Council approved the Downtown Implementation Plan (DTIP). The purpose of the DTIP is to serve as the catalyst to achieve the goals that define the vision for the Downtown Master Plan. The DTIP provides a set of physical plans and detailed recommendations to increase economic development in Downtown Denton. The DTIP defines specific action items to be undertaken in phases to implement the recommendations. In addition, The DTIP identifies an investment strategy for short term and long term goals. The DTIP also addresses issues raised by the Downtown business community and develops a plan for the physical development of the Downtown. Following the acceptance of the DTIP by the City Council, staff initiated action items identified by the plan. One of the action items is the development of a Wayfinding Signage Project in the DTIP area. In October 2010, staff began working on the development of a comprehensive Wayfinding Signage Project to guide visitors to locations offering public parking and local points of interest. Staff developed the type of signs, identified potential locations, drafted contents, and designed three themes. The three themes are based on recommendations from the DTIP, information from previous studies, and staff input. The comprehensive Wayfinding Signage Project grew to include entry signage (both primary and secondary) into the City. The goal of the Wayfinding Signage Project is to create a comprehensive, unifying signage theme throughout the City. In order to build consensus, staff presented the three (3) different themes to various boards, committees and commissions to receive input. After receiving input, staff compiled and analyzed the information then prepared a modified Wayfinding Signage Project theme. Utilizing the modified theme, staff conducted an online survey to receive input from the general public. The online survey was promoted weeks prior and over 370 citizens participated in the Wayfinding online survey. The majority of the citizens that participated in the survey agreed that the modified Wayfinding Signage Project theme was easy to read and understand, represents the historical character of Denton while incorporating modern features, unique and identifiable to Denton, and will enhance wayfinding throughout the Downtown and City. On July 19, 2011, the modified theme and the input received from the various boards, committees and commissions and the data gathered from the online survey were presented to City Council to hold a discussion City of Denton Page 1 of 3 Printed on 9/10/2015 File #: S115 -0020, Version: 1 and to seek direction regarding the implementation of a Wayfinding Signage Project. At the meeting, the Council directed staff to move forward with the project and hire a consultant to prepare Design Technical Documents. On December 18, 2012, City Council approved an ordinance authorizing a Professional Services Agreement (PSA) with Merje Design for consulting services. The proposed Wayfinding Signage Project includes designs for primary entries, secondary entries, vehicular directional signs directing the general public to Downtown and, once there, multiple types of signs that will direct the general public to the Downtown's multiple points of interest, such as the Square, Quakertown Park, Main City Hall, Civic Center, City Hall West, City Hall East, UNT, TWU, Public Parking and the DCTA Downtown Transit Center. OPTIONS 1. Direct staff to proceed with the proposed Wayfinding Signage Project as presented 2. Direct staff to proceed with the proposed Wayfinding Signage Project with changes PRIOR ACTION/REVIEW (Council, Boards, Commissions) 1. August 17, 2010 - City Council acceptance of DTIP 2. February 10, 2011 - Downtown Task Force 3. February 10, 2011 - Main Street Association Board 4. February 23, 2011 - City of Denton Communicators Group 5. March 11, 2011 - CIP Oversight Committee 6. March 23, 2011 - Planning and Zoning Commission 7. March 29, 2011 - Developers Committee 8. April 4, 2011 - Parks, Recreation and Beautification Board 9. May 13 - May 27, 2011 - Online Survey 10. April 19, 2011 - City Council Work Session 11. July 19, 2011 - City Council Work Session 12. December 18, 2012 - City Council approved Professional Services Agreement (PSA) with Merje Design 13. March 12, 2015 - Downtown Task Force ESTIMATED SCHEDULE OF PROJECT Staff is recommending that the Wayfinding Signage Project be implemented in multiple phases. Phase 1 will consist of the manufacturing /fabrication and installation of the directional signs (vehicular and pedestrian), kiosks, and street signs throughout the DTIP area. The objective is to implement the Wayfinding Signage Project within the DTIP area first and work outward. Phase 2 of the Wayfinding Signage Project will consist of the manufacturing /fabrication and construction of the primary entry signs and secondary entry signs. Further phases will consist of the manufacturing /fabrication and construction of the city building signs, public park signs and other signs identified as needed. Once the Design Technical Documents are complete, bids for fabrication and installation will be sent out by the City. The anticipated schedule for Phase 1 is immediate. FISCAL INFORMATION At this time the cost and schedule associated with the implementation of the Wayfinding Signage Project has not been finalized. The cost and schedule will be finalized during the open bidding process with the selection of a sign company. Although the final cost has not yet been determined, the City has identified potential funding sources. One of the funding source is through a CIP Bond program. On March 11, 2011, the CIP Oversight Committee recommended approval of a motion to move $700,000.00 City of Denton Page 2 of 3 Printed on 9/10/2015 File #: S115 -0020, Version: into the Wayfinding Signage Project program from CIP funds approved for the design, property acquisition, and construction of entry corridors for Downtown. The CIP Bond funds were originally approved in the 2004 CIP Bond program for enhancements to either the Fort Worth Drive or the Dallas Drive entrance to the city. Funds have been identified using a combination of TxDOT, County and City resources for the reconstruction of Fort Worth Drive from I -35 to Country Club Road. Because the design of Fort Worth Drive is in process and part of Dallas Drive is proposed to be reconstructed in conjunction with the I -35E widening project, moving forward with those enhancements at this time is not recommended. On April 19, 2011, staff presented to City Council the CIP Oversight Committee's recommendation to reallocate CIP funds for the implementation of the Wayfinding Signage Project. EXHIBITS Exhibit 1- Modified Theme Exhibit 2- Proposed Wayfinding Directional Signage Exhibit 3- Proposed Wayfinding Gateway Signage Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Ron Menguita, AICP DRC Administrator City of Denton Page 3 of 3 Printed on 9/10/2015 \ \ \ } � \ ƒ 4 / § ^ . � . \ \\ . �2\ o ) \\ CL \ \ \ } � \ ƒ 4 / § . . w � � � � � � . � . . . . � \ � � . . w � � � s 3-; 19 15 A s� ��� ov _off, t� s{ ��� vv O m D E INN T 0 o va on uuuuuuuuuuuuuuuuulll wo wa E 4 uuuuuuuuuuuuuuuuulll wo wo G O a O a c m a a .� a _a V 1A T 3v v vw, � w v °c' mV J ENNTON �auuuiul uuuuuuuuuuuuuuuuuuuuuuuuudllll@ uuuuuuuuuuuuuuuuuuuuuuuudlll�luuuuuuuuuuuuuuuuuuuuiuuuuillllllluuuuuuuuuuuuuuuuuuuuuuuiul luuuuu� //r ME r llllllllll) I IIII (llllllllll ,,, , "q0 /rf rrrrrrrr, T d � E � v F �a!/ urn / /�✓ ��,/ , Jl ro /!�� a,i�D� � /% � (llllllllll ,��.,. ✓� �" � � ���1 /���j�� Ill) / / / / / /l /i;': riiiirirr //r ME r llllllllll) I IIII (llllllllll ,,, , "q0 /rf rrrrrrrr, T d � E � v F FI FI E 0 ol ....... . ................. . . . '] r III -4 -D(WNT N UI D O wa on City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -831, 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 Daniel Lambert Survey, Abstract Number 784, located generally at the northeast corner of Mayhill Road and Colorado Boulevard, 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. ( Mayhill Road Widening and Improvements project - Parcel M231 -Ray Hallford, Trustee) [ID 15 -833] City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -834, 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 generally located at the Southeast corner of E. McKinney Street and S. Mayhill Road, the affected tract located in the Morreau Forrest Survey, Abstract No. 417, 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. ( Mayhill Road Widening and Improvements project - Parcel M088 -BCI Real Estate Ventures, LP) [ID 15 -835] City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -865, 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 -866] City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -878, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code Section 551.071; Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to legal and economic development issues related to Rail Yard Partners, LTD. and economic development incentives and the acquisition of real property interests in the H. Sisco Survey, Abstract No. 1184, Denton, Denton County, Texas, generally located in the 600 block of E. Hickory. This discussion shall include commercial and financial information the City Council has received from Rail Yard Partners, LTD. 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 -879] City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -654, 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 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -857, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -858, Version: 1 Agenda Information Sheet SUBJECT Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive a briefing and presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding the proposed Professional Services Agreement (the "Agreement ") by and between the City of Denton, Texas and Burns & McDonnell Engineering Company, Inc., Kansas City. Missouri, regarding contractual matters that deal with plans, studies, proposals and analyses for system improvements to the Denton Municipal Electric system, said Agreement in the amount of $395,652, is in addition to the original contract in the amount of $264,648, not to exceed an aggregated contract total of $660,300. Consultation with the City's attorneys regarding legal issues associated with the Agreement 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. Discuss, deliberate, provide staff with direction, consider approval and take final action on said Agreement. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -859, Version: 1 Agenda Information Sheet SUBJECT Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive a briefing and presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding the proposed three -year Professional Services Agreement (the "Agreement ") by and between the City of Denton, Texas and Teague Nall & Perkins, Inc. regarding contractual matters that deal with plans, studies, proposals and analyses for system improvements to the Denton Municipal Electric system, said Agreement in the amount of $470,000, is in addition to the original contract in the amount of $450,000, not to exceed an aggregated contract total of $920,000. Consultation with the City's attorneys regarding legal issues associated with the Agreement 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. Discuss, deliberate, provide staff with direction, consider approval and take final action on said Agreement. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -862, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with and provide direction to City's attorney's regarding legal issues and legal strategies associated with the City's pole attachments, pole attachment fees and outstanding pole attachment fees owed; 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 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -863, Version: 1 Agenda Information Sheet SUBJECT Consultation 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 access, occupation and /or use of the City's right of way for fiber, fiber conduit, and /or pole attachments by Zayo Group, LLC; 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 9/9/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com NTON Legislation Text File #: ID 15 -576, Version: 1 SUBJECT Denton Hispanic Heritage Month City of Denton Page 1 of 1 Printed on 9/10/2015 h rvvm d by I cx:ls i''I City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -771, Version: 1 Agenda Information Sheet SUBJECT Constitution Week City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -855, Version: 1 Agenda Information Sheet SUBJECT DFW Solar Tour Day City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -791, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Monica Jones regarding an issue with Animal Services and an issue with Community Improvement Services. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -816, Version: 1 Agenda Information Sheet SUBJECT Bob Clifton regarding public servants. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -898, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Don Merki regarding Uber, electric vehicle charging stations, and electric vehicles for the City. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -727, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, levying the ad valorem property tax of the City of Denton, Texas, for the year 2015, on all taxable property within the corporate limits of the city on January 1, 2015, and adopting a tax rate of $0.689750 per $100 of valuation for 2015; providing revenues for payment of current municipal maintenance and operation expenses and for payment of interest and principal on outstanding City of Denton debt; providing for limited exemptions of certain homesteads; providing for enforcement of collections; providing for a severability clause; and providing an effective date. BACKGROUND The proposed tax rate of $0.689750 per $100 valuation is used to balance the FY 2015 -16 Budget. This proposed tax rate is the same as the prior year, but is above the effective rate of $0.656271. Of the proposed tax rate, $0.474560 will be applied to fund operations and maintenance in the General Fund and $0.215190 will be applied to fund tax - supported General Obligation and Certificates of Obligation debt. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The FY 2015 -16 Budget was submitted to the City Council on July 31, 2015. A workshop to present the details of the Budget to the City Council was conducted on August 6, 2015. The City Council also discussed the proposed budget during Work Sessions on August 11, August 18, August 25 and September 1. A Public Hearing on the Budget was held on September 1. In addition, two public hearings were held on the proposed tax rate on August 18 and September 1. FISCAL INFORMATION The proposed property tax rate will generate $58,374,555, of which $39,977,232 will be used to fund operations and maintenance in the General Fund and $18,127,740 will be used to fund tax - supported General Obligation and Certificates of Obligation debt. An additional $269,580 will be generated for the Downtown Tax Increment Reinvestment Zone district and $3 will be generated for the Westpark Tax Increment Reinvestment Zone district. EXHIBITS 1. Ordinance City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -727, Version: 1 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 9/10/2015 sAlegal \our documents \ordinances \15 \ad valorem tax levy ord.docx Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, LEVYING THE AD VALOREM PROPERTY TAX OF THE CITY OF DENTON, TEXAS, FOR THE YEAR 2015, ON ALL TAXABLE PROPERTY WITHIN THE CORPORATE LIMITS OF THE CITY ON JANUARY 1, 2015, AND ADOPTING A TAX RATE OF $0.689750 PER $100 OF VALUATION FOR 2015; PROVIDING REVENUES FOR PAYMENT OF CURRENT MUNICIPAL MAINTENANCE AND OPERATION EXPENSES AND FOR PAYMENT OF INTEREST AND PRINCIPAL ON OUTSTANDING CITY OF DENTON DEBT; PROVIDING FOR LIMITED EXEMPTIONS OF CERTAIN HOMESTEADS; PROVIDING FOR ENFORCEMENT OF COLLECTIONS; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after notice of the proposed tax rate and public hearing on the budget were published in the Denton Record Chronicle and posted on the City's intereet web site and its public access television channel as required by law, on September 1, 2015, the City Council of the City of Denton, Texas, (City) held one public hearing on the proposed budget. This budget will raise more from property taxes than last year's budget by an amount of $4,593,522 which is an 8.54 percent increase from last year's budget. The property tax revenue to be raised from new property added to the tax roll this year is $1,426,002; and WHEREAS, this Ordinance sets a tax rate of $0.689750 that, if applied to the total taxable value, will impose an amount of taxes to fund maintenance and operation expenditures of the City that exceeds the amount of taxes imposed for that purpose in 2014; and WHEREAS, the City Council deems it in the public interest to adopt a tax rate for the 2015 tax year of $0.689750; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. By authority of the Charter of the City of Denton, Texas, and the Laws of the State of Texas, there is hereby levied and adopted for the tax year 2015, on all taxable property situated within the corporate limits of the City of Denton, Texas, on January 1, 2015, a tax rate of $0.689750 for each $100 of taxable value. This tax rate is expected to increase total revenue from properties on the tax roll by 8.54% over 2014 tax revenues. SECTION 3. Of the total tax rate, $0.474560 for each $100 of taxable value is hereby included, adopted and shall be distributed to the General Fund of the City to fund maintenance and operation expenditures of the City in accordance with Section 26.05(a)(2) of the Texas Property Tax Code and any other applicable laws. SECTION 4. Of the total tax rate, $0.215190 for each $100 of taxable value is hereby included, adopted and shall be distributed to pay the City's debt service as provided by Sections 26.04(e)(3)(C) and 26.05(a)(1) of the Texas Property Tax Code and any other applicable laws. sAlegal \our documents \ordinances\15 \ad valorem tax levy ord.docx SECTION 5. THIS TAX RATE WILL RAISE MORE TAXES FOR MAINTENANCE AND OPERATIONS THAN LAST YEAR'S TAX RATE. SECTION 6. THE TAX RATE WILL EFFECTIVELY BE RAISED BY 5.10 PERCENT AND WILL RAISE TAXES FOR MAINTENANCE AND OPERATIONS ON A $100,000 HOME BY APPROXIMATELY $33.48. SECTION 7. The City Manager, or his designee, is directed to include the following statement on the home page of the City's Internet website: THE CITY OF DENTON, TEXAS, ADOPTED A TAX RATE THAT WILL RAISE MORE TAXES FOR MAINTENANCE AND OPERATIONS THAN LAST YEAR'S TAX RATE AND THE TAX RATE WILL EFFECTIVELY BE RAISED BY 5.10 PERCENT AND WILL RAISE TAXES FOR MAINTENANCE AND OPERATIONS ON A $100,000 HOME BY APPROXIMATELY $33.48. SECTION 8. This budget will raise more revenue from property taxes than last year's budget by an amount of $4,593,522 which is an 8.54 percent increase from last year's budget. The property tax revenue to be raised from new property added to the tax roll this year is $1,426,002. SECTION 9. Pursuant to Article 8, Section 1 -b of the Texas Constitution, and pursuant to the provisions of Section 11.13(n) of the Texas Property Tax Code, one -half percent of the assessed value of residential homesteads, or $5,000 of the assessed value of residential homesteads, whichever amount shall be greater, shall be exempt from City ad valorem taxes. SECTION 10. Pursuant to Article 8, Section 1 -b of the Texas Constitution, $50,000 of the assessed value of residential homesteads of persons 65 years of age or older shall be exempt from City ad valorem taxes for 2015. SECTION 11. Pursuant to Article 8, Section 1 -b of the Texas Constitution, $10,000 of the assessed value of residential homesteads of disabled persons shall be exempt from City ad valorem taxes. SECTION 12. For enforcement of the collection of taxes hereby levied the City of Denton shall have available all rights and remedies provided by law. SECTION 13. If any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or the 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 14. This Ordinance shall become effective immediately upon its passage and approval at a regular meeting of the City Council of the City of Denton, Texas, on this the 15'h day of September 2015, at which meeting a quorum was present and the meeting was held in accordance PAGE 2 sAlegal \our documents \ordinances\15 \ad valorem tax levy ord.docx with the provisions of the Tex. Gov't Code, Section 551.001 et seq. The City Secretary is hereby directed to record this Ordinance and the vote to adopt the tax rate. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Council Member Chris Watts, Mayor Dalton Gregory, Mayor Pro Tem Keely Briggs Kathleen Wazny Joey Hawkins Kevin Roden Greg Johnson CHRIS WATTS, MAYOR PAGE 3 Voted For Voted Against City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -728, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, approving the 2015 tax rolls; and providing an effective date. BACKGROUND As a component of the budget process, the City is required by Chapter 26 of the Texas Property Tax Code to approve the tax roll on an annual basis. The tax levy is calculated by taking the 2015 Certified Appraisal Roll (excluding property values under protest) and applying the 2015 adopted tax rate. The anticipated collection rate is 100 percent. FISCAL INFORMATION The approval of the tax roll will enable Denton County to mail tax bills in October 2015. 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 1 of 1 Printed on 9/10/2015 S:Tegal \Our Documents \0rdinances\15 \Ordinance Tax Roll.docx Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING THE 2015 TAX ROLLS; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the 2015 tax rolls of the City of Denton, Texas, which will result in a tax levy in the amount of $58,374,555 based on the Certified Appraisal Roll as approved by the Appraisal Review Board of the Denton Central Appraisal District. SECTION 2. 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 BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -729, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, adopting the Fiscal Year 2015 -2016 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal year beginning on October 1, 2015, and ending on September 30, 2016; and declaring an effective date. BACKGROUND The City Council received the City Manager's FY 2015 -16 Proposed Budget on July 31, 2015. A workshop to present the details of the Budget was conducted on August 6, 2015. Further discussions on the Budget were also held on August 11, August 18, August 25 and September 1. A public hearing on the Proposed Budget was also held on September 1 to solicit citizen feedback. In addition, two public hearings were held on the tax rate on August 19 and September 1. The following changes were made to the Proposed Budget as directed by City Council: General Fund - City Manager's FY 2015 -16 Proposed Revenues $109,458,464 • Lower proposed tax rate ($0.689750) $ (558,515) • Revenue transferred to Economic Development Fund $ (150,000) Revised General Fund Revenues $108,749,949 City Manager's FY 2015 -16 Proposed Expenditures • Reallocate Council Funding Priority Amount • Police Body Cameras Community Event Center Improvements • Homelessness Coordinator position (City share) Cash funding of Police vehicles (removed) City -wide Facility Space Study (removed) • Building lease payments for Development Services GIS Technician position in Planning Veterinary Technician (contract services /Animal Shelter) • Bike Racks $109,458,464 $ (959,188) $ 171,200 $ 103,000 $ 40,000 $ (250,000) $ (200,000) $ 90,000 $ 66,166 $ 62,816 $ 11,907 City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -729, Version: 1 Revised General Fund Expenditures $108,594,365 Other Funds Increases (Decreases) - • $ 150,000 Create Economic Development Incentive Fund • $ 90,000 McKinney Street Cross Walk from Traffic Safety Fund • $ 22,430 South By Southwest Marketing from Tourist & Convention Fund • $ 8,476 Parks Maintenance for Hickory Street from Tree Mitigation Fund • $ 25,428 Parks Maintenance for Hickory Street from Downtown TIRZ Fund • ($ 2,591) Downtown TIRZ Fund revenue from lower proposed tax rate ($0.689750) • ($ 2,138) General Debt Service Fund due to utility bond sale refunding Staff has also revised the General Government Capital Improvement Program by $3,275,000 in FY 2015 -16. While preparing the proposed budget, staff inadvertently included the construction of Fire Station 44 in a later year, but it should be in the FY 2015 -16 CIP. Additionally, staff has revised the CIP to include $405,000 for the construction of the Exposition parking lot by reducing funding for the facility maintenance program. Finally, staff has removed $250,000 in revenue funding in the CIP for the replacement of police vehicles. In addition to the above changes, the City Council also directed staff to repurpose the previously included amount of $150,000 for Convention Center marketing in the Tourist & Convention Fund to Community Event Center Improvements. The FY 2015 -2016 Budget is summarized by fund in the Budget Resource and Expenditure Summary, which is attached to the ordinance. EXHIBITS 1. Revised Budget Resources & Expenditure Summary 2. 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 9/10/2015 General Fund $ 97,962,829 $ 102,846,640 $ 103,679,116 $ 108,749,949 General Debt Service Fund 44,389,247 54,014,287 53,988,492 63,847,681 Electric Fund 166,263,221 177,044,830 170,230,860 175,753,887 Water Fund 40,061,764 46,202,271 43,791,498 46,681,823 Wastewater Fund 28,844,440 30,925,904 30,922,320 32,354,231 Solid Waste Fund 26,584,941 27,802,592 28,656,727 31,192,530 Airport Fund 2,923,988 4,567,377 3,323,182 2,608,900 Technology Services Fund 8,729,715 11,320,223 11,237,321 11,159,626 Materials Management Fund 8,168,647 11,864,317 12,783,420 13,614,839 Fleet Management Fund 10,123,874 12,701,893 10,491,466 11,539,309 Risk Retention Fund 2,986,949 3,810,614 3,806,925 3,741,283 Health Insurance Fund 22,911,967 27,490,268 26,363,937 29,617,121 Engineering Services Fund 4,260,887 4,658,066 4,660,081 4,906,201 Street Improvement Fund 8,254,307 10,181,026 10,283,436 11,115,423 Recreation Fund 1,764,049 2,267,084 2,108,351 2,204,123 Tourist & Convention Fund 1,990,739 2,134,406 2,028,586 2,145,064 Police Confiscation Fund 329,680 204,200 198,500 183,500 Traffic Safety Fund 1,648,083 1,700,000 1,809,760 1,600,000 Parks Gas Well Fund 322,111 200,100 200,000 150,100 Tree Mitigation Fund 1,173,508 544,078 544,078 687,153 Public Education Government Fund 358,245 377,750 374,449 384,500 McKenna Trust Fund 47,000 1,000 1,000 1,000 Downtown Tax Increment Financing Fund 146,590 245,056 145,506 269,580 Westpark Tax Increment Reinvestment Zone Fund - 3,083 1,336 4 Miscellaneous Special Revenue Funds 131,075 127,000 200,927 229,000 Park Land Dedication Trust Fund 314,568 700,000 700,000 700,000 Park Development Trust Fund 271,675 500,000 500,000 1,700,000 Police Academy Fund 25,530 45,000 25,078 50,000 Downtown Reinvestment Fund 100,418 173,500 140,500 217,918 Economic Development Fund - - - 150,000 TOTAL OPERATING RESOURCES $ 481,090,047 $ 534,652,565 $ 523,196,852 $ 557,554,745 Grant Program 5,011,718 3,975,555 3,037,153 5,381,486 Capital Improvements Program (2) 99,192,715 385,296,443 109,484,723 405,609,000 TOTAL RESOURCES $ 585,294,480 $ 923,924,563 $ 635,718,728 $ 968,545,231 2013-14 2014-15 2014-15 2015-16 EXPENDITURES ACTUAL BUDGET ESTIMATE PROPOSED General Fund $ 97,879,718 $ 102,846,640 $ 103,322,156 $ 108,594,365 General Debt Service Fund 44,235,213 54,014,287 53,871,393 63,847,681 Electric Fund 166,263,221 177,044,830 170,230,860 175,753,887 Water Fund 40,061,764 46,202,271 43,791,498 46,681,823 Wastewater Fund 28,821,681 30,925,904 30,531,022 32,340,185 Solid Waste Fund 26,584,941 27,802,592 27,796,163 31,190,615 Airport Fund 2,593,359 4,567,377 3,323,182 2,608,900 Technology Services Fund 8,729,715 11,320,223 11,237,321 11,159,626 Materials Management Fund 8,164,183 11,864,317 11,864,317 13,614,839 Fleet Management Fund 10,096,762 12,654,694 10,491,466 11,539,309 Risk Retention Fund 2,875,148 3,810,614 3,806,925 3,741,283 Health Insurance Fund 21,510,685 27,490,268 26,363,937 29,617,121 Engineering Services Fund 3,636,032 4,636,101 4,634,257 4,906,201 Street Improvement Fund 8,254,307 10,181,026 10,181,026 11,115,423 Recreation Fund 1,749,996 2,267,084 2,108,351 2,204,123 Tourist & Convention Fund 1,738,528 2,134,406 1,886,612 2,167,494 Police Confiscation Fund 329,680 198,500 198,500 183,500 Traffic Safety Fund 1,420,525 1,617,400 1,617,400 1,537,650 Parks Gas Well Fund 140,500 200,000 200,000 150,000 Tree Mitigation Fund - 544,078 544,078 695,629 Public Education Government Fund 286,451 377,750 374,449 384,500 McKenna Trust Fund 47,000 - - - Downtown Tax Increment Financing Fund - - - 103,428 Westpark Tax Increment Reinvestment Zone Fund - - - - Miscellaneous Special Revenue Funds 99,652 102,000 61,613 229,000 Park Land Dedication Trust Fund 24,173 700,000 700,000 700,000 Park Development Trust Fund 119,997 500,000 500,000 1,700,000 Police Academy Fund 47,697 45,000 22,325 50,000 Downtown Reinvestment Fund 15,500 173,500 140,500 217,918 Economic Development Fund 150,000 TOTAL OPERATING EXPENDITURES $ 475,726,428 $ 534,220,862 $ 519,799,351 $ 557,184,500 Grant Program 5,011,718 3,975,555 3,037,153 5,381,486 Capital Improvements Program (Z) 99,192,715 385,296,443 109,484,723 405,609,000 TOTAL EXPENDITURES $ 579,930,861 $ 923,492,860 $ 632,321,227 $ 968,174,986 SALegal \Our Documents \Ordinances \I5 \Budget 2015 -2016 Ord.docx Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ADOPTING THE FISCAL YEAR 2015- 2016 ANNUAL PROGRAM OF SERVICES (BUDGET) AND THE CAPITAL IMPROVEMENT PROGRAM OF THE CITY OF DENTON, TEXAS, FOR THE FISCAL YEAR BEGINNING ON OCTOBER 1, 2015 AND ENDING ON SEPTEMBER 30, 2016; AND DECLARING AN EFFECTIVE DATE. WHEREAS, notice of a public hearing on the Annual Program of Services for the City of Denton, Texas, for the Fiscal Year 2015 -2016 (Budget) was heretofore published not earlier than the 300i , or later than the 10"' day before the date of said public hearing and such other notice was given in accordance with all applicable law; and WHEREAS, the proposed Budget was filed with the City Secretary and posted on the City's Internet website in accordance with all applicable law; and WHEREAS, a public hearing on said Budget was duly held on September 1, 2015, and all interested persons were given an opportunity to be heard for or against any item thereof, and WHEREAS, on June 22, 2015, the Public Utilities Board recommended the utility operations budgets and capital improvements to be constructed during the coming year; and WHEREAS, the City Council finds that a Community Event Center will serve the public interest and additionally will promote tourism in the City through the sponsorship of various events designed to be of interest to persons throughout the City, Region and State; and WHEREAS, the City Council finds that the South by Southwest events will serve the public interest and additionally will promote tourism in the City through the sponsorship of various events designed to be of interest to persons throughout the City, Region and State; 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. SECTION 2. The Budget for the City of Denton, Texas, for the fiscal year beginning on October 1, 2015, and ending on September 30, 2016 prepared by the City Manager and filed with the City Secretary, as amended by the City Council, is hereby approved and adopted, a copy of which Budget is attached hereto and incorporated by reference herein. SECTION 3. The City Council hereby appropriates from available resources to the following funds: General Fund $ 108, 594, 365 General Debt Service Fund 63, 847,681 Electric Fund 175,753,887 Water Fund 46, 681, 823 Wastewater Fund 32,340,185 Solid Waste Fund 31,190,615 Airport Fund 2,608,900 Technology Services Fund 11,159,626 Materials Management Fund 13,614,839 Fleet Management Fund 11, 539, 309 Risk Retention Fund 3,741,283 Health Insurance Fund 29,617,121 Engineering Services Fund 4,906,201 Street Improvement Fund 11,115,423 Recreation Fund 2,204,123 Tourist & Convention Fund 2,167,494 Police Confiscation Fund 183,500 Traffic Safety Fund 1,537,650 Parks Gas Well Fund 150,000 Tree Mitigation Fund 695,629 Public Education Government Fund 384,500 Downtown Tax Increment Financing Fund 103,428 Westpark Tax Increment Reinvestment Zone Fund - Police Donations 30,000 Fire Donations 4,000 Animal Control Donations 45,000 Library Donations 150,000 Park Land Dedication Trust Fund 700,000 Park Development Trust Fund 1,700,000 Police Academy Fund 50,000 Downtown Reinvestment Fund 217,918 Economic Development Fund 150,000 TOTAL OPERATING EXPENDITURES $ 557,184,500 Grant Program 5,381,486 Capital Improvements Program 405,609,000 TOTAL EXPENDITURES $ 968,174,986 SECTION 4. The City Council approves the capital improvements proposed to be constructed during the forthcoming year, which are incorporated in the 2015 -2016 Budget. SECTION 5. The Budget includes certain unlisted, authorized and unpaid encumbrances from the prior fiscal year to be carried over to the 2015 -2016 Budget as determined by the City Manager or his designee. SECTION 6. The City Council hereby ratifies all prior transfers made under the direction of the City Manager for the current and prior fiscal years pursuant to Article VIII, Section 8.07 of the City Charter of the City of Denton. At any time during the fiscal year, the City Manager may transfer any part of the unencumbered appropriation balance or the entire balance thereof between programs or general classifications or expenditures within a fund that has been appropriated by the City Council. For the purpose of this Ordinance, the City Council defines an organizational unit as set forth in PAGE 2 Article VIII, Section 8.07 of the City Charter, to be a fund that has been appropriated by the City Council. SECTION 7. The City Manager, or his designee, shall cause copies of the Budget to be filed with the City Secretary, County Clerk of Denton County, and the State Comptroller of Public Accounts in Austin, Texas, and shall post a copy of the Budget as hereby adopted on the City's Internet website in accordance with applicable law. SECTION 8. This Ordinance shall become effective immediately upon its passage and approval at a regular meeting of the City Council of the City of Denton, Texas, on this the 15`x' day of September 2015, at which meeting a quorum was present and the meeting was held in accordance with the provisions of Tex. Gov't Code § 551.001, et. seq. The City Secretary is hereby directed to record this Ordinance and the vote to adopt the Budget. SECTION 9. Sections 2 -26, 2 -27, and 26 -1 of the City of Denton, Texas, Code of Ordinances are hereby repealed. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:' Council Member Voted For Voted Against Chris Watts, Mayor Dalton Gregory, Mayor Pro -Tern Kevin Roden Keely Briggs Kathleen Wazny Joey Hawkins Greg Johnson PAGE 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -730, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, ratifying the adoption of the Fiscal Year 2015- 16 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal year beginning October 1, 2015, and ending on September 30, 2016 when the Budget will raise more revenue from property taxes than last year's budget; and providing an effective date. BACKGROUND Chapter 102 of the Local Government Code (LGC) requires certain provisions to be taken when the adoption of a budget will require raising more revenue from property taxes than in the previous year. Specifically, Chapter 102.007 Section C of the LGC states: "Adoption of a budget that will require raising more revenue from property taxes than in the previous year requires a separate vote of the governing body to ratify the property tax increase reflected in the budget. A vote under this subsection is in addition to and separate from the vote to adopt the budget or a vote to set the tax rate required by Chapter 26, Tax Code, or other law." The FY 2015 -2016 Budget will require raising more revenue from property taxes than in the previous year. Because of this, the City Council is required to take separate action to vote to ratify the property tax increase in the budget. FISCAL INFORMATION The FY 2015 -2016 proposed tax rate is $0.68975 per $100 valuation, which is the same tax rate as FY 2014- 2015. The FY 2015 -2016 Adopted Budget will generate approximately $4,593,522 or 8.54 percent more property tax revenue than FY 2014 -2015. Of this amount, $1,426,002 is tax revenue related to additional value from new construction over the past year. EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349 -8260 City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -730, Version: 1 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 2 of 2 Printed on 9/10/2015 h rvvm d by I cx:ls i''I sAlegal \our documents \ordinances \15\ratify budget fyl5- 16.docx Exhibit 1 ORDINANCE AN ORDINANCE OF THE CITY OF DENTON, TEXAS, RATIFYING THE ADOPTION OF THE FISCAL YEAR 2015 -2016 ANNUAL PROGRAM OF SERVICES (BUDGET) AND THE CAPITAL IMPROVEMENT PROGRAM OF THE CITY OF DENTON, TEXAS, FOR THE FISCAL YEAR BEGINNING ON OCTOBER 1, 2015, AND ENDING ON SEPTEMBER 30, 2016 WHEN THE BUDGET WILL RAISE MORE REVENUE FROM PROPERTY TAXES THAN LAST YEAR'S BUDGET; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas, has previously on this day of September 15, 2015 adopted the Fiscal Year 2015 -16 Annual Program of Services (Budget) and the Capital Improvement Program for the City of Denton and set a tax rate for 2015 in separate votes and actions; and WHEREAS, this Budget will raise more revenue from property taxes than last year's budget; and WHEREAS, Section 102.007 of the Texas Local Government Code requires the City Council to take a separate vote to ratify the property tax increase reflected in the Budget when it will raise more total property taxes than last year's budget; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Council hereby ratifies the adoption of the City of Denton Fiscal Year 2014 -2015 Annual Program of Services (Budget) and the Capital Improvement Program that will raise more revenue from property taxes than last year's Budget by an amount of $4,593,522, which is an 8.54 percent increase from last year's budget. The property tax revenue to be raised from new property added to the tax roll this year is $1,426,002 with a total tax rate of $0.68975 per $100 of taxable value. The City Council hereby ratifies the property tax increase reflected in the Budget. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval at a regular meeting of the City Council of the City of Denton, Texas on this the 15tb day September 2015 at which meeting a quorum was present and the meeting was held in accordance with the provisions of Tex. Gov't Code § 551.001, et. seq. The City Secretary is hereby directed to record this Ordinance and the vote to ratify approval of the adoption of the Budget that will raise more revenue from property taxes than last year's budget. sAlegal \our documents \ordinances \15\ratify budget fyl5- 16.docx PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS. CITY ATTORNEY BY: Council Member Chris Watts, Mayor Dalton Gregory, Mayor Pro -Tem Kevin Roden Keely Briggs Kathleen Wazny Joey Hawkins Greg Johnson Page2 CHRIS WATTS, MAYOR Voted For Voted Against City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -598, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc. in the not -to- exceed amount of $757,073). FILE INFORMATION During the bond election of 2005, the citizens of Denton approved the replacement of the restrooms at North Lakes Park Fields 5 and 6, the restroom at Mack Park's Roberts Field, and the restroom concession at Mack Park. All of these structures were built in 1979. Parks and Recreation Department staff researched various construction methods, obtained construction pricing from several contractors, and determined that prefabricated concrete restrooms are significantly less expensive than standard restrooms (Exhibit 1). Prefabricated restrooms are used widely within the Parks and Recreation industry and have become the standard in many State and municipal Parks Departments. This purchase is for the design, engineering, and installation of three (3) of these restroom facilities. The pricing has been competitively bid through a contract facilitated by the National Joint Powers Alliance (Exhibit 2). In accordance with the procedures of Texas Local Government Code 271.102 (Cooperative Purchasing Participation), the City of Denton, Texas is authorized to participate in Cooperative Agreements. RECOMMENDATION Approve a cooperative purchase agreement through NJPA Contract# 022113 with CXT, Inc. in the not -to- exceed amount of $757,073. PRINCIPAL PLACE OF BUSINESS CXT, Inc. Spokane Valley, WA This project will be facilitated and the buildings manufactured by the local plant in Hillsboro, Texas. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -598, Version: 1 ESTIMATED SCHEDULE OF PROJECT The installation of the buildings is estimated to be completed by December 31, 2015. FISCAL INFORMATION This project will be funded from the Parks Capital Project Fund using the following accounts numbers: 400079470.1350.40100 - $467,218 400080470.1350.40100 - $290,855 Purchase Order 171451 will be revised to add the individual buildings for each park area. EXHIBITS Exhibit l: Staff Memo Exhibit 2: NJPA Contract Award Exhibit 3: Ordinance Exhibit 4: 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 9/10/2015 EXHIBIT 1 Parks it RKrEa' "ICN1 C Q , Parks and Recreation Departinent 601 E. Hickory St., Suite B, Denton, Texas 76205 Date: July 8, 2015 TO: Elton Brock FROM: Jim Mays SUBJECT: CXT Restrooms NJPA Contract 4 022113 -CXT Prefabricated buildings were selected for the restroom replacements instead of on -site buildings for the three (3) park restrooms (Roberts, Mack, and North Lakes) that were funded in the 2005 CIP. This is due to the fact that the amount of available funds was insufficient to cover the cost of the three projects that were presented in the 2005 Bond Election. Traditional design and construction of site built facilities would cost in excess of $560,000 each. With the additional requirements to get the Mack Park concession within Health Code compliance, that figure would have been significantly higher. Currently, there is only $842,683 to complete all the restroom replacement projects. After consulting with the City's Materials Management Division, I contacted Scott Richter, Owner of Caliber Construction — Denton, Texas to receive local informal quotes based on the City of Denton's Unit price for general construction. Caliber Construction has performed many successful construction projects for the City of Denton. Scott stated that "there was no way he would be able to provide a quote that would fall within the proposed budget as it would come to more than $800,00 for each structure ". The total would have easily exceeded $2.4 million dollars. He went on to suggest that the only way we would be able to move this project forward with our limited budget was to use a prefabricated building manufacturer. After conducting extensive research, there are only three vendors in the United States the produce these types of prefabricated structures. I visited the plants of two of the companies, one of which produces an inferior product, while CXT buildings are much more structurally sound and a lot more visually appealing. The third company is located in Reno, Nevada which was not feasible to visit. Shipping costs from this location would be extremely high as each building consists of five or more sections that weigh in excess of 80,000 pounds. CXT is located in Hillsboro, Texas which allows for a lower shipping cost, feasible access to visit the production facility and a much quicker response to any warranty issues should they arise. I then met with members of the Park Department, and our stakeholders, to provide all an opportunity to have input on the design of the project. After a period of vetting and review along with an evaluation of similar builders, then team settled on CXT as the "best valued option" for the City of Denton needs. ADA/EOE /ADEA www.cityofdenton.com (TDD 800 - 735 -2989) EXHIBIT 1 Page 2 of 2 The Engineered drawings were purchased so that a review could be made by our Building Inspections Division, and each of the three structures has been approved and qualify for a building permit. I am recommending that the City purchase three (3) pre- fabricated buildings constructed and set in place by CXT at the designated Park locations, in order to remain within the allotted funding. ADA/EOE /ADEA www.cityofdenton.com (TDD 800 - 735 -2989) National Joint Powers A}liomoe : CXTIoc. Page } of EXHIBIT 2 Home -National Cooperative Contract Solutions Contracts `Gene=°Parksmnecr=oon,oXTInc. ",_W kn 06� ������, ����==RD C?W C""tr,ct4.022113-Cxr Category: Parks &Recreation Description: Athletic & Recreational Surfaces, Playgrounds and Equipment Concrete Buildings Maturity Date: 04p3/2u1r oncunc��nunu/nn,mannmcm�s��vo=`xm°� and m"o,mo"uunu/"n,amnamemmumn/eueuom^ o�~�° textures and colors. The roof and walls are fabricated with high strength precast concrete to meet all local Contract Documentation building codes and textured to match local architectural details. All CXT buildings are designed to meet A.D,A. and to withstand snow, wind and group I seismic design category E earthquakes. All concrete construction also pn"/"o makes the buildings easy to maintain and withstand the rigors of vandalism. The buildings are prefabricated and uex�eammp/e�onan*av'm-us=muumnon/ummnoanue/ecmo/wxe�ann//ome.w/,xtxuu,anu,� Marketing Materials satisfied customers nationwide, cmu the leader m prefabricated concrete re,tmum,. NJPA Contact Information HOW TO PURCHASE '^ ---------[�\ nm��+�*�»om�`�~' Vendor Contact Info Garyamoerwmiono/Sa/es Manager Direct Phone: moo>aoa'srsa u3450 ceo:(254)717-0912 aww.cxtinc,com Sales Direct Phone: ��6-s66 ANNUAL RENEWAL OF AGREEMENT Made by and Between CT Inc. (Vendor) 3808 North Sullivan, Building 47 Spokane Valley, WA 99216 F =1 202 121b Street NE Staples, MN 5647.9 Phone.- (218) 894-1930 LYhereas: "Vendor" and "NIPA" have entered into an "Acceptance and Award #022113-CXP'for the procurement of Playground and Recreation Related Equipment, Accessories and Supplies, and having a maturity date of April 23, 2017, and which are subject to annual renewals at the option of both parties, Now therefore: "Vendor" and "NJPA" hereby and"Teriew the above defined contract for the period of April 2,3 ;YYI-5 LtA 0-13 NtttinnaLJ640 Poi 9 wia .05N By: (L—. Its- Executive Director/CE0 Im- LI-A its: All Name printed or typed: Date EXHIBIT 2 ANNUAL RENEWAL OF AGREEMENT Made by and BetvNeen CXT Inc. (Vendor) 3808 North Sullivan, Building #7 Spokane Valley, WA 99216 and National Joint Powers Alliance( (NJPA) 202 12" Street NE Staples, MN 56479 Phone.- (218) 894-1930 Whereas: "Vendor" and "NA'A" have entered into an "Acceptance and Award 4022113-CX'I"' fbr the procurement of Playground and Recreation Related riquipment, Accessories and Supplies, and having a maturity date or April 23, 2017, and which are subJect, to annual renewals at the option of both parties. Now therefore: "Vendoe'and "NJPA" hereby desire and agree to extend and renew the above defined contract for the period of April 23, 2014 to ri 2r(11w -,-----, "rational joint,' o1v pan teo- By: Its: Executive Director/CEO Name printed or Date By: Name printed or typed: r A (LM, I;z U 4z (0 f4t Date Its: V —ATj sjoA 50-19�t MAvA(.Qt 1�/ I .'If youdo not desire to extend contract, please sign below and return this agreement. Discontinue,, We desire to discontinue the contract. Date: gnature: ..... . ...... EXHIBIT 2 011 � A (To be completed only by NJPA) Proposer's full legal name National oint Powers Allia nce (NMIA) 11 1 Vendor Name Vendor Authorized signature: . . .......... . .... . ..... . . . .... . ...... . ... .................. .. . ... ...... . . ..... It (Name printed or typed) Title: A5,C, EXeCUted this day of 20, NJ PA Contract Number #022113 mmmm 44 Revision 1....7 -1.3 EXHIBIT 2 FORM D Formal Offering of Proposal (To be completed Only by Proposer) Company Name: CKT Date, Z - 17— - �,3 Company Address: -'A-> L4A v At o,-, i taped -7 Cit : SPU State: Contact Person . ........ G-R-..... . 5 ...,..C...-..I ............ Title: . ...... 5 Authorized Signature (ink only): (Name printed or typed) 43 Revilvion 1.- 7- 13 National Joint Powers Alliance (herein NJPA) REQUEST FOR PROPOSAL (herein RFP) for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT ACCESSORIES, AND SUPPLIES RFP Opening February 21, 2013 8:00 A.M. Central Time At the offices of the National Joint Powers Alliance® 20212 th Street Northeast, Staples, MN 56479 RFP #022113 The National Joint Powers Alliance® (NJPA), on behalf of NJPA and its current and potential Member agencies to include all Government, Higher Education, K12 Education, Non - Profit, and all other Public Agencies located nationally in all fifty states and potentially internationally, issues this Request For Proposal (RFP) to result in a national contract solution for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Details of this RFP are available beginning January 9, 2013 and continuing until January 25, 2013. Details may be obtained by letter of request to Gregg Meierhofer, NJPA, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479, or by e -mail at RFP @njpacoop.org. Proposals will be received until February 20, 2013 at 4:30 p.m. Central Time at the above address and opened February 21, 2013 at 8:00 A.M. Central Time. Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 RFP Timeline January 9, 2013 Publication of RFP in the print and online Minneapolis Star Tribune, in the print and online Daily Journal of Commerce within the State of Oregon, the NJPA website, and on the website of noticetobidders.com January 25, 2013 Deadline for RFP requests January 29, 2013 Pre- Proposal Conference (webcast — conference call - Connection info 10 :00 A.M. Central Time sent to all inquirers two business days prior to the event) February 20, 2013 Deadline for Submission of Proposals 4:30 P.M. Central Time February 21, 2013 Public Opening of Proposals 8:00 A.M. Central Time Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 2. 4. EXHIBIT 2 Methods and guidelines for submitting questions are detailed within the body of this document. TABLE OF CONTENTS INTRODUCTION A. About NJPA B. Joint Exercise of Powers Laws C. Why Respond to a National Cooperative Procurement Contract D. The Intent of This RFP E. Scope of This RFP F. Expectations for Equipment/Products and Services Being Proposed G. Solutions Based Solicitation H. Inquiry Period 1. Pre - Proposal Conference DEFINITIONS A. Proposer— Vendor B. Contract C. Time D. Proposer's Response E. Currency F. FOB INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. Pre - Proposal Conference B. Identification of Key Personnel C. Proposer's Exceptions to Terms and Conditions D. Formal Instructions to Proposers E. Questions and Answers About This RFP F. Modification or Withdrawal of a Submitted Proposal G. Value Added Attributes, Products /Services H. Certificate of Insurance I. Order Process and /or Funds Flow J. Administrative Fees PRICING STRATEGIES A. Line -Item Pricing B. Percentage Discount From Catalog or Category C. Hot List Pricing D. Ceiling Price E. Volume Price Discounts F. Sourced Product/Equipment /Open Market Items G. Cost Plus a Percentage of Cost H. Total Cost of Acquisition I. Requesting Product and Service Additions /Deletions J. Requesting Pricing Changes K. Price and Product Changes Format L. Single Statement of Pricing — Historical Record of Pricing M. Payment Terms 2 Revision 1 -7 -13 N. Sales Tax O. Shipping and Shipping Program P. Normal Working Hours 5. MARKETING PLAN 6. PROPOSAL OPENING PROCEDURE 7. EVALUATION OF PROPOSALS A. Proposal Evaluation Process B. Proposer Responsiveness C. Proposal Evaluation Criteria D. Other Consideration E. Cost Comparison F. Product Testing G. Past Performance Information H. Waiver of Formalities 8. POST AWARD OPERATING ISSUES A. Subsequent Agreements B. NJPA Member Sign -up Procedure C. Reporting of Sale Activity D. Audits E. Hub Partner F. Trade -Ins G. Out of Stock Notification H. Termination of a Contract resulting from this RFP 9. GENERAL TERMS AND CONDIITONS A. Advertisement of RFP B. Advertising a Contract Resulting From This RFP C. Applicable Law D. Assignment of Contract E. List of Proposers F. Captions, Headings, and Illustrations G. Data Practices H. Entire Agreement I. Force Majeure J. Gratuities K. Hazardous Substances L. Legal Remedies M. Licenses N. Material Suppliers and Sub - Contractors O. Non - Wavier of Rights P. Protests of Awards Made Q. Provisions Required by Law R. Right to Assurance S. Suspension or Disbarment Status T. Affirmative Action U. Severability V. Relationship of Parties 10. FORMS A, B, C, D, E,F,G &P 11. PRE - SUBMISSION CHECKLIST EXHIBIT 2 1. INTRODUCTION A. ABOUT NJPA 1_1 The National Joint Powers Alliance®- (NJPA)- is a public agency serving as a national municipal contracting agency established under the Service Cooperative statute by Minnesota Legislative Statute § 123A.21 with the authority to develop and offer, among other services, cooperative procurement services to its membership. Eligible membership and participation includes states, cities, counties, all government agencies, both public and non - public educational agencies, colleges, universities and non - profit organizations. 1_2 Under the authority of Minnesota state laws and enabling legislation, NJPA facilitates a competitive bidding and contracting process on behalf of the needs of itself and the needs of current and potential member agencies nationally. This process results in national procurement contracts with various Vendors of products /equipment and services which NJPA Member agencies desire to procure. These procurement contracts are created in compliance with applicable Minnesota Municipal Contracting Laws. A complete listing of NJPA cooperative procurement contracts can be found at http: / /www.njpacoop.org /contract -purchasing- sol „utiops /contracts,. 1_3 NJPA is a public agency governed by publicly elected officials that serve as the NJPA Board of Directors. NJPA's Board of Directors calls for all proposals, awards all Contracts, and hosts those resulting Contracts for the benefit of its own and its Members use. 1.3.1 Subject to Approval of the NJPA Board: NJPA contracts are awarded by the action of NJPA Board of Directors. This action is based on the open and competitive bidding process facilitated by NJPA. The evaluation and resulting recommendation is presented to the Board of Directors by the NJPA Proposal Evaluation Committee. 1_4 NJPA currently serves over 47,000 member agencies nationally. Both membership and utilization of NJPA contracts continue to expand, due in part to the increasing acceptance of Cooperative Purchasing throughout the government and education communities nationally. B. JOINT EXERCISE OF POWERS LAWS 1_5 NJPA cooperatively shares those contracts with its Members nationwide through various "Joint Exercise of Powers Laws” established in Minnesota and other States. The Minnesota "Joint Exercise of Powers Law" is Minnesota Statute §471.59 which states "Two or more governmental units ... may jointly or cooperatively exercise any power common to the contracting parties..." Similar Joint Exercise of Powers Laws exists within the laws of each State of the United States. This Minnesota Statute allows NJPA to serve Member agencies located in all other states. Municipal agencies nationally have the ability to participate in cooperative purchasing activities as a result of specific laws of their own state. These laws can be found on our website at http: / /www.nipacoop.org /contract- purchasing- solutions /legal- authority/ state - procurement,- re,S,o,urces. C. WHY RESPOND TO A NATIONAL COOPERATIVE PROCUREMENT CONTRACT 1_6 National Cooperative Procurement Contracts create value for Municipal and Public Agencies, as well as for Vendors of products /equipment and services in a variety of ways: 1.6.1 National cooperative contracts potentially save the time and effort of Municipal and Public Agencies who would have been otherwise charged with soliciting vendor responses to individual RFP's, resulting in individual contracts, to meet the procurement needs of their respective agencies. Considerable time and effort is also potentially saved by the Vendors who would have had to otherwise respond each of those individual RFPs. A single, nationally 3 Revision 1 -7 -13 EXHIBIT 2 advertised RFP, resulting in a single, national cooperative contract can potentially replace thousands of individual RFPs for the same products /services that might have been otherwise advertised by individual NJPA member agencies. 1.6.2 NJPA contracts offer our Members nationally leveraged volume purchasing discounts. Our contract terms and conditions offer the opportunity for Vendors to recognize individual member procurement volume commitment through additional volume based contract discounts. 1_7 State laws that permit or encourage cooperative purchasing contracts do so with the belief that cooperative efficiencies will result in lower prices, better overall value, and considerable time savings. 1_8 The collective purchasing power of thousands of NJPA Member agencies nationwide offers the opportunity for volume pricing discounts. Although no sales or sales volume is guaranteed by an NJPA Contract resulting from this RFP, substantial volume is anticipated and volume pricing is requested and justified. 1_9 NJPA and its Members desire the best value for their procurement dollar as well as a competitive price. Pre - competed procurement contracts offer NJPA and its Member agencies the ability to directly compare non -price factors in their procurement analysis. Vendors have the opportunity to display and highlight value added attributes of their company, equipment/products and services without constraints of a typical individual proposal process. D. THE INTENT OF THIS RFP 1.10. A national contract awarded by the NJPA Board of Directors: The intent of this RFP is to award a national contract by the action of the NJPA Board of Directors. This action will be influenced by the recommendation of the NJPA Proposal Evaluation Committee, and as a result of the competitive proposal and evaluation process which has been designed to reflect the best interests of NJPA and its Member agencies. NJPA is seeking the most responsive Vendor relationship(s) to meet this need. The goal and intent of this RFP is to follow through with an award and contract, which will be marketed nationally through a cooperative effort between the awarded vendor(s) and NJPA. 1.11 NJPA's primary intent is to establish and provide a national cooperative procurement contract, offering opportunities for NJPA and our Member agencies to procure quality product/equipment and services as desired and needed. Contracts are expected to offer price levels reflective of the potential and collective volume of NJPA and the nationally established NJPA membership base. 1.11.1 Beyond our primary intent, NJPA further desires to: • Award a four year term contract with a fifth year contract option resulting from this RFP; • Offer and apply any applicable technological advances throughout the term of a contract resulting from this RFP; • Deliver "Value Added" aspects of the company, equipment /products and services as defined in the "Proposer's Response "; • Deliver wide spectrums of solutions to meet the needs and requirement of NJPA and NJPA Member agencies. • Award an exclusive contract to the most responsive vendor when it is deemed to be in the best interest of NJPA and the NJPA Member agencies. 1.12 Non - Manufacturer Awards: NJPA reserves the right to make an award related to this invitation to a non - manufacturer or dealer /distributor if such action is in the best interests of NJPA and its Members. 4 Revision 1 -7 -13 EXHIBIT 2 1.13 Exclusive or Multiple Awards: Based on the goals and scope of this RFP, NJPA is requesting responders to demonstrate their ability to serve the needs of NJPA's national membership. It is NJPA's intent and desire to award a contract to a single exclusive Vendor to serve our membership's needs. To meet the goals of this RFP, NJPA reserves the right to award a Contract to multiple Proposers where the result of the responding Proposers justifies a multiple award and multiple contracts are deemed to be in the best interests of NJPA Member agencies. E. SCOPE OF THIS RFP 1.14 The scope, goal and intent of this RFP is to award a contract to a qualifying vendor defined as a manufacturer, provider, or dealer /distributor, established as a Proposer, and deemed responsive through our open and competitive proposal process. Vendors will be awarded contracts based on the proposal and responders demonstrated ability to meet the expectations of the RFP and demonstrate the overall highest valued solutions which meet and /or exceed the current and future needs and requirements of NJPA and its Member agencies nationally within the scope of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Qualifying Proposers who are able to anticipate the current and future needs and requirements of NJPA and NJPA member agencies; demonstrate the knowledge of any and all applicable industry standards, laws and regulations; and possess the willingness and ability to distribute, market to and service NJPA Members in all 50 states are preferred. NJPA requests proposers submit their entire product line as it applies and relates to the scope of this RFP. All proposals deemed responsive will be evaluated based on their ability to provide the overall highest value to NJPA and NJPA Member agencies. One of the measures of overall highest value will be the proposed breadth and depth of products and services. 1.15 Best and Most Responsive — Responsible Proposer: It is the intent of NJPA to award a Contract to the best and most responsible and responsive Proposer(s) offering the best overall quality and selection of equipment/products and services meeting the commonly requested specifications of the NJPA and NJPA Members, provided the Proposer's Response has been submitted in accordance with the requirements of this RFP. 1.16 Sealed Proposals: NJPA will receive sealed proposal responses to this RFP in accordance with accepted standards set forth in the Minnesota Procurement Code and Uniform Municipal Contracting Law. Awards may be made to responsible and responsive Proposers whose proposals are determined in writing to be the most advantageous to NJPA and its current or qualifying future NJPA Member agencies. 1.17 Use of Contract: Any Contract resulting from this solicitation shall be awarded with the understanding that it is for the sole convenience of NJPA and its Members. NJPA and /or its members reserve the right to obtain like product /equipment and services solely from this Contract or from another contract source of their choice or from a contract resulting from their own procurement process. 1.18 NJPA's interest in a contract resulting from this RFP: Not withstanding its own use, to the extent NJPA issues this RFP and any resulting contract for the use of its Members, NJPA's interests and liability for said use shall be limited to the competitive proposal process performed and terms and conditions relating to said contract and shall not extend to the products, services, or warranties of the Awarded Vendor or the intended or unintended effects of the product/equipment and services procured there from. 1.19 Awarded Vendor's interest in a contract resulting from this RFP: Awarded Vendors will be able to offer to NJPA, and current and potential NJPA Members, only those products /equipment and services specifically awarded on their NJPA Awarded Contract(s). Awarded Vendors may not offer as "contract compliant ", products /equipment and services which are not specifically identified and priced in their NJPA Awarded Contract. 1.20 Sole Source of Responsibility- NJPA desires a "Sole Source of Responsibility" Vendor meaning the Vendor will take sole responsibility for the performance of delivered products /services. NJPA also desires sole responsibility with regard to: Revision 1 -7 -13 EXHIBIT 2 1.20.1 Scope of Products /Services: NJPA desires a provider for the broadest possible scope of products /equipment and services being proposed over the largest possible geographic area and to the largest possible cross - section of NJPA current and potential Members. 1.20.2 Vendor use of sub- contractors in sourcing or delivering product /equipment and services: NJPA desires a single source of responsibility for equipment /products and services proposed. Proposers are assumed to have sub - contractor relationships with all organizations and individuals whom are external to the Proposer and are involved in providing or delivering the product /equipment and services being proposed. Vendor assumes all responsibility for the equipment /products and services and actions of any such Sub - Contractor. 1.21 Additional Definitions for the scope of this solicitation. 1.21.1 In addition to PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES, this solicitation should be read to include, but not limited to: 1.21.1.1 N/A 1.21.2 NJPA reserves the right to limit the scope of this solicitation for NJPA and current and potential NJPA member agencies. 1.22 Suggested Solutions Options 1.22.1 All potential Proposers are assumed to be professionals in their respective fields. As professionals you are deemed to be intimately familiar with the spectrum of NJPA and NJPA Members' needs and requirements with respect to the scope of this RFP. 1.22.2 With this intimate knowledge of NJPA and NJPA Members' needs, Proposers are instructed to provide their proposal response in a format describing their solutions to those current and future needs and requirements. Proposers should take care to be economical in their response to this RFP. 1.22.3 Multiple solutions to the needs of NJPA and NJPA Members are possible. Examples could include: 1.22.3.lEquipment /Products Only Solution: Equipment /products Only Solution may be appropriate for situations where NJPA or NJPA Members possess the ability, either in- house or through local third party contractors, to properly install and bring to operation those equipment /products being proposed. 1.22.3.2 Turn -Key Solutions: A Turn -Key Solution is a combination of equipment /products and services which provides a single price for equipment/products, delivery, and installation to a properly operating status. Generally this is the most desirable solution as NJPA and NJPA Members may not possess, or desire to engage, personnel with the necessary expertise to complete these tasks internally or through other independent contractors 1.22.3.3 Good, Better, Best: Where appropriate and properly identified, Proposers are invited to offer the CHOICE of good — better — best multiple grade solutions to NJPA and NJPA Members' needs. 6 Revision 1 -7 -13 EXHIBIT 2 1.22.3.4 Proven — Accepted — Leading Edge Technology: Where appropriate and properly identified, Proposers are invited to provide an appropriate identified spectrum of technology solutions to compliment or enhance the functionality of the proposed solutions to NJPA and NJPA Members' needs both now and into the future. 1.23 Overlap of Scope: 1.23.1 When considering equipment, products, or groups of product /equipment and services submitted as a part of your response, and whether inclusion of such will fall within a "Scope of Proposal ", please consider the validity of an inverse statement. • For example, pencils and post -it -notes can generally be classified as office supplies and office supplies generally include pencils and post -it- notes. • In contrast, computers (PCs and peripherals) can generally be considered office supplies; however, the scope of office supplies does not generally include computer servers and infrastructure. • In conclusion: With this in mind, individual products and services must be examined individually by NJPA, from time to time and in its sole discretion, to determine their compliance and fall within the original "Scope" as intended by NJPA. 1.24 Geographic Area to be Proposed: This RFP invites proposals to provide PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to NJPA and NJPA Members throughout the entire United States and possibly internationally. Proposers will be expected to express willingness to explore service to NJPA Members located abroad; however the lack of ability to serve Members outside of the United States will not be cause for non - award. The ability and willingness to serve Canada, for instance, will be viewed as a value -added attribute. 1.25 Manufacturer as a Proposer: If the Proposer is a Manufacturer or wholesale distributor, the response received will be evaluated on the basis of a response made in conjunction with that Manufacturer's authorized Dealer Network. Unless stated otherwise, a Manufacturer or wholesale distributor Proposer is assumed to have a documented relationship with their Dealer Network where that Dealer Network is informed of, and authorized to accept, purchase orders pursuant to any Contract resulting from this RFP on behalf of the Manufacturer or wholesale distributor Proposer. Any such dealer will be considered a sub - contractor of the Proposer /Vendor. The relationship between the Manufacturer and wholesale distributor Proposer and its Dealer Network may be proposed at the time of the proposed submission if that fact is properly identified. 1.26 Dealer /Re- seller as a Proposer: If the Proposer is a dealer or re- seller of the products and /or services being proposed, the response will be evaluated based on the Proposer's authorization to provide those products and services from their manufacturer. Where appropriate, Proposers must document their authority to offer those products and /or services. 1.27 Contract Term: At NJPA's option a contract resulting from this RFP will become effective either; 1) The date awarded by the NJPA Board of Directors, or 2) The day following the expiration date of an existing NJPA procurement contract for the same or similar product/equipment and services. 1.27.1 NJPA is seeking a Contract base term of four years subject to annual renewals as allowed by Minnesota Contracting Law. Full term is expected, however will only occur through successful annual renewals. One additional one -year renewal- extension may be offered by NJPA to Vendor beyond the original four year term if NJPA deems such action to be in the best interests of NJPA and its Members. 7 Revision 1 -7 -13 EXHIBIT 2 1.28 Minimum Contract Value: NJPA anticipates considerable activity resulting from this RFP and subsequent award; however, no commitment of any kind is made concerning actual quantities to be acquired. NJPA does not guarantee usage. Usage will depend on the actual needs of the NJPA Members and the value of the awarded contract. 1.29 Estimated Contract Volume: Estimated quantities and sales volume are based on potential usage by NJPA and NJPA Member agencies nationally. 1.30 Largest Possible Solution: If applicable, Contracts will be awarded to Proposer(s) able to deliver a proposal meeting the entire needs of NJPA and its Members within the scope of this RFP. NJPA prefers Proposers submit their complete product line of products and services described in the scope of this RFP. NJPA reserves the right to reject individual, or groupings of specific equipment /products and services proposals as a part of the award. 1.31 Contract Availability: This Contract must be available to all current and potential NJPA Members who choose to utilize this NJPA Contract to include all governmental and public agencies, public and private primary and secondary education agencies, and all non - profit organizations nationally. 1.32 Proposer's Commitment Period: In order to allow NJPA the opportunity to evaluate each proposal thoroughly, NJPA requires any response to this solicitation be valid and irrevocable for ninety (90) days after the date proposals were opened regarding this RFP. F. EXPECTATIONS FOR EQUIPMENT /PRODUCTS AND SERVICES BEING PROPOSED 1.33 Industry Standards: Except as contained herein, the specifications or solutions for this RFP shall be those accepted guidelines set forth by the PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES industry, as they are generally understood and accepted within that industry across the nation. Submitted products /equipment, related services, and their warranties and assurances are required to meet and /or exceed all current, traditional and anticipated needs and requirements of NJPA and its Members. 1.33.1 Deviations from industry standards must be identified by the Proposer and explained how, in their opinion, the equipment /products and services they propose will render equivalent functionality, coverage, performance, and /or related services. Failure to detail all such deviations may comprise sufficient grounds for rejection of the entire proposal. 1.33.2 Technical Descriptions /Specifications. Proposers must supply sufficient information to: • Demonstrate the Proposer's knowledge of industry standards, and • Identify the equipment/products and services being proposed, and • Differentiate those products and services from others. Excessive technical descriptions and specifications which, in the opinion of NJPA unduly enlarge the proposal response may reduce evaluation points awarded on Form G. 1.34 Important note: NJPA does not typically provide product and service specifications; rather NJPA is requesting an industry standard or accepted specification for the requested product /equipment and services. Where specific line items are specified, those line items should be considered the minimum which can be expanded by the Proposer to deliver the Proposer's "Solution" to NJPA and NJPA Members' needs. 1.35 Commonly used Product /Equipment and Services: It is important that the equipment /products and services submitted are the equipment /products and services commonly used by public sector entities. Revision 1 -7 -13 EXHIBIT 2 1.36 New Current Model Product /Equipment: Proposals submitted shall be for new, current model products and services with the exception of certain close -out products allowed to be offered on the Proposer's "Hot List" described herein. 1.37 Compliance with laws and standards: All items supplied on this Contract shall comply with any current applicable safety or regulatory standards or codes. 1.38 Delivered and operational; Products /equipment offered herein are to be proposed based upon being delivered and operational at the NJPA Member's site. Exceptions to "delivered and operational" must be explicitly disclosed in the "Total Cost of Acquisition" section of your proposal response. 1.39 Warranty: The Proposer warrants that all products, equipment, supplies, and services delivered under this Contract shall be covered by the industry standard or better warranty. All products and equipment should carry a minimum industry standard manufacturer's warranty that includes materials and labor. The Proposer has the primary responsibility to submit product specific warranty as required and accepted by industry standards. Dealer /Distributors agree to assist the purchaser in reaching a solution in a dispute over warranty's terms with the manufacturer. Any manufacturer's warranty which is effective past the expiration of the warranty will be passed on to the NJPA member. Failure to submit a minimum warranty may result in non- award. 1.40 Proposer's Warrants: The Proposer warrants all products /equipment and related services furnished hereunder will be free from liens and encumbrances; defects in design, materials, and workmanship; and will conform in all respects to the terms of this RFP including any specifications or standards. In addition, Proposer /Vendor warrants the products /equipment and related services are suitable for and will perform in accordance with the purposes for which they were intended. G. SOLUTIONS BASED SOLICITATION 1.41 NJPA solicitations and contract process will not offer specific specifications for proposers to meet or base your response on. This RFP is a "Solutions Based Solicitation ". This means the proposers are asked to understand and anticipate the current and future needs of NJPA and the nationally located NJPA membership base, within the scope of this RFP, and including specifications commonly desired or required by law or industry standards. Your proposal will be evaluated in part on your demonstrated ability to meet or exceed the needs and requirements of NJPA and our member agencies within the defined scope of this RFP. H. INQUIRY PERIOD 1.42 The inquiry period shall begin at the date of first advertisement and continue to the "Deadline for Requests ". RFP packages shall be distributed to Potential Bidders during the inquiry period. The purpose for the defined "Inquiry Period" is to provide a finite group of Potential Bidders to invite to, and attend the pre -bid conference. I. PRE -BID CONFERENCE 1.43 All Potential Bidders inquiring during the inquiry period will be invited to the OPTIONAL "Pre -Bid Conference" via the e-mail address used to make their inquiry. The purpose of the pre -bid conference is to allow Potential Bidders to ask questions and hear answers from their own questions and the questions of other Potential Bidders. 2. DEFINITIONS A. PROPOSER - VENDOR 9 Revision 1 -7 -13 EXHIBIT 2 2_1 Exclusive Vendor- A sole Vendor awarded in a product category. NJPA reserves the right to award to an Exclusive Vendor in the event that such an award is in the best interests of NJPA Members nationally. A Proposer that exhibits and demonstrates the ability to offer and execute an outstanding overall program, demonstrates the ability and willingness to serve NJPA current and qualifying Members in all 50 states and comply with all other requirements of this RFP, is preferred. 2_2 Potential Proposer- A person or entity requesting a copy of this RFP. 2_3 Proposer- A company, person, or entity delivering a timely response to this RFP. 2_4 Vendor- One of a number of Proposers whose proposal has been awarded a contract pursuant to this RFP. 2_5 Request for Proposal- Herein referred to as RFP B.CONTRACT 2_6 "Contract" as used herein shall mean cumulative documentation consisting of this RFP, fully executed forms C, D, F & P from the Proposer's response pursuant to this RFP, and a fully executed form E, "Acceptance and Award" with final terms and conditions. Form E will be executed on or after award and will provide final clarification of terms and conditions of the award. C. TIME 2_7 Periods of time, stated as number of days, shall be in calendar days. D. PROPOSER'S RESPONSE 2_8 A Proposer's Response is the entire collection of documents as they are received by NJPA from a Potential Proposer in response to this RFP. E. CURRENCY F. FOB 2_9 All transactions are payable in U.S. dollars on U.S. sales. All administrative fees are to be paid in U.S. dollars. 2.10 FOB stands for "Freight On Board" and defines the point at which responsibility for loss and damage of product /equipment purchased is transferred from Seller to Buyer. "FOB Destination" defines that transfer of responsibility for loss is transferred from Seller to Buyer at the Buyer's designated delivery point. 2.11 FOB does not identify who is responsible for the costs of shipping. The responsibility for the costs of shipping is addressed elsewhere in this document. 3. INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. PRE - PROPOSAL CONFERENCE 3_1 A non - mandatory pre - proposal conference will be held at the date and time specified in the time line on page one of this RFP. Conference call and web connection information will be sent to all Potential 10 Revision 1 -7 -13 EXHIBIT 2 Proposers through the same means employed in their inquiry. The purpose of this conference call is to allow Potential Proposers to ask questions regarding this RFP. Only answers issued in writing by NJPA to questions asked before or during the Pre - proposal Conference shall be considered binding. B. IDENTIFICATION OF KEY PERSONNEL 3_2 Vendor will designate one senior staff individual who will represent the awarded Vendor to NJPA. This contact person will correspond with members for technical assistance, questions or problems that may arise including instructions regarding different contacts for different geographical areas as needed. 3_3 Individuals should also be identified (if applicable) as the primary contacts for the contents of this proposal, marketing, sales, and any other area deemed essential by the Proposer. C. PROPOSER'S EXCEPTIONS TO TERMS AND CONDITIONS 3_4 Any exceptions, deviations, or contingencies a Proposer may have to the terms and conditions contained herein must be documented on Form C. 3_5 Exceptions, deviations or contingencies stipulated in Proposer's Response, while possibly necessary in the view of the Proposer, may result in disqualification of a Proposal Response. D. FORMAL INSTRUCTIONS TO PROPOSERS 3_6 It is the responsibility of all Proposers to examine the entire RFP package, to seek clarification of any item or requirement that may not be clear and to check all responses for accuracy before submitting a Proposal. Negligence in preparing a Proposal confers no right of withdrawal after the deadline for submission of proposals. 3_7 All proposals must be sent to "The National Joint Powers Alliance®, 202 12th ST NE Staples, MN 56479." 3_8 Format for proposal response: All proposals must be physically delivered to NJPA at the above address in the following format: 3.8.1 Hard copy original signed, completed, and dated forms C,D,F,I, and hard copy signed signature page only from forms A and P from this RFP, 3.8.2 Hard copies of all addenda issued for the RFP with original counter signed by the Proposer, 3.8.3 Certificate of insurance verifying the coverage identified in this RFP, 3.8.4 Two complete copies of your response on a CD (Compact Disc) or flash drive. The first copy shall be identified as the "Evaluation Copy" and the second copy will be identified as the "Public Records" copy. Both copies shall contain completed Forms A,B,C,D,F & P, your statement of products and pricing together with all appropriate attachments, a copy of your audited financial statements from previous year end(or an unaudited copy if an audited copy is not available). However, your "Public Record Copy" shall have all "Trade Secret" information redacted. You will be responsible for citing specific legal authority for each redaction as identified herein. 3_9 All Proposal forms must be submitted in English and be legible. All appropriate forms must be executed by an authorized signatory of the Proposer. Blue ink is preferred for signatures. 3.10 Proposal submissions should be submitted using the electronic forms provided. If a Proposer chooses to use alternative documents for their response, the proposer will be responsible for ensuring the content is effectively equal to the NJPA form and the document is in a format readable by NJPA. 3.11 It is the responsibility of the Proposer to be certain the proposal submittal is in the physical possession of NJPA on or prior to the deadline for submission of proposals. 11 Revision 1 -7 -13 EXHIBIT 2 3.11.1 Proposals must be submitted in a sealed envelope or box properly addressed to NJPA and prominently identifying the proposal number, proposal category name, the message "Hold for Proposal Opening ", and the deadline for proposal submission. NJPA cannot be responsible for late receipt of proposals. Proposals received by the correct deadline for proposal submission will be opened and the name of each Proposer and other appropriate information will be publicly read. 3.12 Corrections, erasures, and interlineations on a Proposer's Response must be initialed by the authorized signer in original ink on all copies to be considered. 3.13 Addendums to the RFP: The Proposer is responsible for ensuring receipt of all addendums to this RFP. 3.13.1 Proposer's are responsible for checking directly with the NJPA website for addendums to this RFP. 3.13.2 Addendums to this RFP can change terms and conditions of the RFP including the deadline for submission of proposals. E. QUESTIONS AND ANSWERS ABOUT THIS RFP 3.14 Upon examination of this RFP document, Proposer shall promptly notify the NJPA of any ambiguity, inconsistency, or error they may discover. Interpretations, corrections and changes to this RFP will be made by NJPA through addendum. Interpretations, corrections, or changes made in any other manner will not be binding and Proposer shall not rely upon such. 3.15 Submit all questions about this RFP, in writing, referencing "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to Gregg Meierhofer, NJPA 202 12th Street NE, Staples, MN 56479 or RFP @njpacoop.org. Those not having access to the Internet may call Gregg Meierhofer at (218) 894 -1930. Requests for additional information or interpretation of instructions to Proposers or technical specifications shall also be addressed to Gregg Meierhofer. NJPA urges Potential Proposers to communicate all concerns well in advance of the deadline to avoid misunderstandings. Questions received less than seven (7) days ending at 4:00 p.m. Central Time of the seventh (7`h) calendar day prior to proposal due -date cannot be answered. 3.16 If the answer to a question is deemed by NJPA to have a material impact on other potential proposers or the RFP itself, the answer to the question will become an addendum to this RFP. 3.17 If the answer to a question is deemed by NJPA to be a clarification of existing terms and conditions and does not have a material impact on other potential proposers or the RFP itself, no further documentation of that question is required. 3.18 As used in this solicitation, clarification means communication with a Potential Proposer for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the RFP. 3.19 Addenda are written instruments issued by NJPA that modify or interpret the RFP. All addenda issued by NJPA shall become a part of the RFP. Addenda will be delivered to all Potential Proposers using the same method of delivery of the original RFP material. NJPA accepts no liability in connection with the delivery of said materials. Copies of addenda will also be made available on the NJPA website at www.njpacoop.org by clicking on "Current and Pending Solicitations" and from the NJPA offices. No questions will be accepted by NJPA later than five (5) days prior to the deadline for receipt of proposals, except an addendum withdrawing the request for proposals or one that includes postponement of the date of receipt of proposals. Each Potential Proposer shall ascertain prior to submitting a Proposal that it has received all addenda issued, and the Proposer shall acknowledge their receipt in its Proposal Response. 3.20 An amendment to a submitted proposal must be in writing and delivered to NJPA no later than the 12 Revision 1 -7 -13 EXHIBIT 2 time specified for opening of all proposals. F. MODIFICATION OR WITHDRAWAL OF A SUBMITTED PROPOSAL 3.21 A submitted proposal may not be modified, withdrawn from or cancelled by the Proposer for a period of ninety (90) days following the date proposals were opened regarding this RFP. Prior to the deadline for submission of proposals, any proposal submitted may be modified or withdrawn by notice to the NJPA Manager of Bids and Contracts. Such notice shall be submitted in writing and include the signature of the Proposer and shall be delivered to NJPA prior to the deadline for submission of proposals and it shall be so worded as not to reveal the content of the original proposal. However, the original proposal shall not be physically returned to the Potential Proposer until after the official proposal opening. Withdrawn proposals may be resubmitted up to the time designated for the receipt of the proposals if they are then fully in conformance with the Instructions to Proposer. G. VALUE ADDED ATTRIBUTES, PRODUCTS /SERVICES 3.22 Examples of Value Added Attributes: Value -Added attributes, products and services are items offered in addition to the products and services being proposed which adds value to those items being proposed. The availability of a contract for maintenance or service after the initial sale, installation, and set -up may, for instance, be "Value Added Services" for products where a typical buyer may not have the ability to perform these functions. 3.23 Where to document Value Added Attributes: The opportunity to indicate value added dimensions and such advancements will be available in the Proposer's Questionnaire and Proposer's product and service submittal. 3.24 Value added equipment /products and services and expanded services, as they relate to this RFP, will be given positive consideration in the award selection. Consideration will be given to an expanded selection of "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", and advances to provide products /services, supplies meeting and /or exceeding today's industry standards and expectations. A value add would include a program or service that further serves the members needs above and possibly beyond standard expectation and complements the equipment /products and services and training. Value added could include areas of product and service, sales, ordering, delivery, performance, maintenance, technology, and service that furthers the functionality and effectiveness of the procurement process while remaining within the scope of this RFP. 3.25 Minority, Small Business, and Women Business Enterprise (WMBE) participation: It is the policy of some NJPA Members to involve Minority, Small Business, and WMBE contractors in the process to purchase product /equipment and related services. Vendors should document WMBE status for their organization AND any such status of their affiliates (i.e. Supplier networks) involved in carrying out the activities invited. The ability of a Proposer to provide "Credits" to NJPA and NJPA Members in these subject areas, either individually or through related entities involved in the transaction, will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. NJPA is committed to facilitating the realization of such "Credits" through certain structuring techniques for transactions resulting from this RFP. 3.26 Environmentally Preferred Purchasing Opportunities: There is a growing trend among NJPA Members to consider the environmental impact of the equipment /products and related services they purchase. "Green" characteristics demonstrated by responding companies will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. Please identify any Green characteristics of the product /equipment and related services in your proposal and identify the sanctioning body determining that characteristic. Where appropriate, please indicate which products have been certified as "green" and by which certifying agency. 13 Revision 1 -7 -13 EXHIBIT 2 3.27 On -Line Requisitioning systems: When applicable, on -line requisitioning systems will be viewed as a value -added characteristic. Proposer shall include documentation about user interfaces that make on- line ordering easy for NJPA Members as well as the ability to punch -out from mainstream e- Procurement or Enterprise Resource Planning (ERP) systems that NJPA Members may currently utilize. 3.28 Financing: The ability of the Proposer to provide financing options for the products and services being proposed will be viewed as a Value Added Attribute. H. CERTIFICATE OF INSURANCE 3.29 Proposer shall provide evidence of liability insurance coverage identified below in the form of an ACCORD binder form with their proposal. Upon Award issued pursuant to this contract, and prior to the execution of any commerce relating to such award, Vendor will be responsible for providing verification, in the form of an ACCORD binder identifying the coverage required below and identifying NJPA as a "Certificate Holder" and an "Additional Insured ". Vendor will be responsible to maintain such insurance coverage at their own expense throughout the term of any contract resulting from this solicitation. 3.30 Vendor, upon award, shall be required to maintain the following insurance coverage during the term of the NJPA Contract: (1) Workers Compensation insurance (Occurrence) with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. In addition, Proposer shall require all subcontractors occupying the premises or performing work under the contract to obtain an insurance certificate showing proof of Workers Compensation Coverage with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. (2) Commercial General Liability Policy per occurrence $1,000,000. (3) Business Auto Policy to include but not be limited to liability coverage on any owned, non - owned and hired vehicle used by Proposer or Proposer's personnel in the performance of this Contract. The Business Automobile Policy shall have a per occurrence limit of $1,000,000. 3.31 The foregoing policies shall contain a provision that coverage afforded under the policies will not be canceled, or not renewed or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to NJPA. Certificates of Insurance showing such coverage to be in force shall be filed with NJPA prior to commencement of any work under the contract. The foregoing policies shall be obtained from insurance companies licensed to do business nationally and shall be with companies acceptable to NJPA, which must have a minimum AM Best rating of A -. All such coverage shall remain in full force and effect during the term and any renewal or extension thereof. I. ORDER PROCESS AND /OR FUNDS FLOW 3.32 Please propose an order process and funds flow. Please choose from one of the following: 3.32.1 B -TO -G: The Business -to- Government order process and /or funds flow model involves NJPA Members issuing Purchase Orders directly to a Vendor and pursuant to a Contract resulting from this RFP. 3.32.3 Other: Please fully identify. J. ADMINISTRATIVE FEES 3.33 Proposer agrees to authorize and /or allow for an administrative fee payable to NJPA by an Awarded Vendor in exchange for its facilitation and marketing of a Contract resulting from this RFP to current and potential NJPA Members. This Administration Fee shall be: 14 Revision 1 -7 -13 EXHIBIT 2 3.33.1 Calculated as a percentage of the dollar volume of all equipment /products and services provided to and purchased by NJPA Members or calculated as reasonable and acceptable method applicable to the contracted transaction, and 3.33.2 Included in, and not added to, the pricing included in Proposer's Response to this RFP, and 3.33.3 Designed to offset the anticipated costs of NJPA's involvement in contract management, facilitating marketing efforts, Vendor training, and any order processing tasks relating to the Contract resulting from this RFP. 3.33.3.1 Typical administrative fees for a B -TO -G order process and funds flow is 2.0 %. 3.34 The opportunity to propose these factors and an appropriate administrative fee is available in the Proposer's Questionnaire. 4. PRICING STRATEGIES 4_1 NJPA requests Potential Proposers respond to this RFP only if they are able to offer a wide array of equipment /products and services and at prices lower and better value than what they would ordinarily offer to single government agency, larger school district, or regional cooperative. 4_2 RFP is an "Indefinite Quantity Product /Equipment and Related Service Price and Program Request" with potential national sales distribution and service. Proposers are agreeing to fulfill Contract obligations regarding each product/equipment to which you provide a description and a price. If Proposer's solution requires additional supporting documentation, describe where it can be found in your submission. If Proposer offers the solution in an alternative fashion, describe your solution to be easily understood. All pricing must be copied on a CD along with other requested information as a part of a Proposer's Response. 4_3 Regardless of the payment method selected by NJPA or NJPA Member, a total cost associated with any purchase option of the equipment/products and services and being supplied must always be disclosed at the time of purchase. 4_4 Primary Pricing /Secondary Pricing Strategies- All Proposers will be required to submit "Primary Pricing" in the form of either "Line -Item Pricing," or "Percentage Discount from Catalog Pricing," or a combination of these pricing strategies. Proposers are also encouraged to offer OPTIONAL pricing strategies such as but not limited to "Hot List," "Sourced Product /Equipment" and "Volume Discounts," as well as financing options such as leasing. A. LINE -ITEM PRICING 4_5 Line -Item pricing- A pricing format where specific individual products and /or services are offered at specific individual Contract prices. Products /equipment and /or related services are individually priced and described by characteristics such as manufacture name, stock or part number, size, or functionality. This method of pricing offers the least amount of confusion as products /equipment and prices are individually identified however, Proposers with a large number of products /equipment to propose may find this method cumbersome. In these situations, a percentage discount from catalog or category pricing model may make more sense and increase the clarity of the contract pricing format. 4_6 All Line -Item Pricing items must be numbered, organized, sectioned, including SKU's (when applicable) and easily understood by the Evaluation Committee and members. 4_7 Line -Item Pricing items are to be submitted in an Excel spreadsheet format provided and are to include all appropriate identification information necessary to discern the line item from other line items 15 Revision 1 -7 -13 EXHIBIT 2 in each Responder's proposal. 4_8 The purpose for the excel spreadsheet format for Line -Item Pricing is to be able to use the "Find" function to quickly find any particular item of interest. For that reason, Proposers are responsible for providing the appropriate product and service identification information along with the pricing information which is typically found on an invoice or price quote for such products /equipment and related services. 4_9 All products /equipment and related services typically appearing on an invoice or price quote must be individually priced and identified on the line -item price sheet, including any and all ancillary costs. 4.10 Proposers are asked to provide both a published "List" price as well as a "Proposed Contract Price" in their pricing matrix. "The published List" price will be the standard "quantity of one" price currently available to government and educational customers excluding cooperative and volume discounts. B. PERCENTAGE DISCOUNT FROM CATALOG OR CATEGORY 4.11 Percent Discount From Catalog, list or Category Pricing- A specific percentage discount from a "Catalogue or List Price" defined as a published Manufacturer's Suggested Retail Price (MSRP) for the products /equipment or related services being proposed. 4.12 Individualized percentage discounts can be applied to any number of defined product groupings. 4.13 A Percentage Discount from MSRP may be applied to all elements identified in MSRP including all Manufacturer Options applicable to the product /equipment or related service. 4.14 Accessory options requested by the customer and related to the general scope of this RFP but are not under the current contract will be priced using a "Sourced Product /equipment pricing model" as defined herein. See Section F 4.15 When a Proposer elects to use "Percentage Discount from Catalog or Category," Proposer will be responsible for providing and maintaining current published "MSRP" with NJPA and must be included in their proposal and provided throughout the term of any Contract resulting from this RFP. 4.16 NJPA reserves the right to review catalogs submitted to determine if the represented products and services reflect and relate to the scope of this RFP. Each new catalog received may have the effect of adding new product offerings and deleting products no longer carried by the Vendor. New catalogs shall apply to the Contract only upon approval of the NJPA. Non - approved use of catalogs may result in termination for convenience. New price lists or catalogs found to be offering non - contract items during the Contract may be grounds for terminating the Contract for convenience. New optional accessories for product /equipment and related services may be added to the Contract through the NJPA approval process at the time they become available. C. HOT LIST PRICING 4.17 Where applicable, NJPA also invites the Vendor, at their option, to offer a specific selection of products /services, defined as a Hot List selection offer pricing at greater discounts or related advantages than those listed in the standard Contract pricing. All product /service pricing, including the Hot List Pricing, must be submitted electronically provided in Excel format. Hot List pricing must be submitted in a Line -Item format. Providing or offering a "Hot List Selection" of equipment /products and related services is optional. Equipment /products and related services may be added or removed from the "Hot List" at any time. 4.18 Hot List program and pricing when applicable may also be used to discount and liquidate close -out 16 Revision 1 -7 -13 EXHIBIT 2 and discontinued equipment/products and related services as long as those close -out and discontinued items are clearly labeled as such. Current ordering process and administrative fees apply. This option must be published and made available to all NJPA Members. 4.19 Hot List Program and Pricing is allowed to change at the discretion of the Vendor within the definition of Hot List Pricing. The Vendor is responsible to maintain current Hot List product/equipment and related service descriptions and Pricing with NJPA. D. CEILING PRICE 4.20 Proposal pricing is to be established as a ceiling price. At no time may the proposed equipment /products and related services be offered pursuant to this Contract at prices above this ceiling price without request and approval by NJPA. IMPORTANT NOTE: Contract prices may be reduced to allow for volume considerations and commitments and to meet the specific and unique needs of an NJPA Member. 4.21 Allowable specific needs may include competitive situations, certain purchase volume commitments or the creation of custom programs based on the individual needs of NJPA Members. E. VOLUME PRICE DISCOUNTS 4.22 Proposers are free to offer volume commitment discounts from the contract pricing documented in a Contract resulting from this RFP. Volume considerations shall be determined between the Vendor and individual NJPA Members on a case -by -case basis. 4.23 Nothing in this Contract establishes a favored member relationship between the NJPA or any NJPA Member and the Vendor. The Vendor will, upon request by NJPA Member, extend this same reduced price offered or delivered to another NJPA Member provided the same or similar volume commitment, specific needs, terms, and conditions, a similar time frame, seasonal considerations, locations, competitively situations and provided the same manufacturer support is available to the Vendor. 4.24 All price adjustments are to be offered equally to all NJPA Members exhibiting the same or substantially similar characteristics such as purchase volume commitments, and timing including the availability of special pricing from the Vendor's suppliers. F. SOURCED PRODUCT /EQUIPMENT /OPEN MARKET ITEMS 4.25 NJPA or NJPA Members may from time to time, request product/equipment and /or equipment/products and related services that are within the related scope of this RFP, which are not included in an awarded Vendor's line -item product /equipment and related service listing or "list or catalog ". These items are known as Sourced Product /Equipment or Open Market Items. 4.26 An awarded Vendor resulting from this RFP may "Source" equipment/products and related services for NJPA or an NJPA Member to the extent they: 4.26.1 Identify all such equipment, products and services as "Sources Product /Equipment " or "Open Market Items" on any quotation issued in reference to an NJPA awarded contract, and provided to either NJPA or an NJPA Member, and 4.26.2 All applicable acquisition regulations pertaining to the purchase of such equipment, products and services have been followed, as defined by NJPA or the NJPA Member receiving quotation from Vendor, and 4.26.3 NJPA or the NJPA Member has determined the prices as quoted by Vendor for such equipment, products and services are deemed to be fair and reasonable and are acceptable to the 17 Revision 1 -7 -13 EXHIBIT 2 member. G. COST PLUS A PERCENTAGE OF COST 4.27 Cost plus a percentage of cost as a primary pricing mechanism is not desirable. H. TOTAL COST OF ACQUISITION 4.28 The Total Cost of Acquisition for the equipment /products and related services being proposed, including those payable by NJPA Members to either the Proposer or a third party, shall be defined as: • The cost of the proposed equipment /products product/equipment and related services delivered and operational for its intended purpose in the end - user's location. 4.29 For example, if you are proposing equipment /products only (IE, FOB Proposer's dock) your proposal would identify your deviation from the "Total Cost of Acquisition" of contracted equipment /products. The "Proposal should reflect that the contract does not provide for delivery beyond Proposer's dock, nor any set -up activities or costs associated with those delivery or set -up activities." In contrast, proposed terms including all costs for product /equipment and services delivered and operational at to the end - user's location would require a disclosure of "None ". 1. REQUESTING PRODUCT /EQUIPMENT AND RELATED SERVICE ADDITIONS /DELETIONS 4.30 Requests for product /equipment and related services, price changes, additions, deletions, or any related contract changes must be made in written form and shall be subject to approval by NJPA. 4.31 New equipment /products and related services may be added to a Contract resulting from this RFP at any time during that Contract to the extent those equipment /products and related services are within the scope of this RFP. Those requests are subject to review and approval of NJPA. Allowable new equipment /products and related services generally include new updated models of equipment /products and related services and or enhanced services previously offered which could reflect new technology and improved functionality. 4.32 Proposers representing multiple manufacturers, or carrying multiple related product lines may also request the addition of new manufacturers or product lines to their Contract to the extent they remain within the scope of this RFP. 4.33 NJPA's due diligence in analyzing any request for change is to determine if approval of the request is 1) within the scope of the original RFP, and 2) in the "Best Interests of NJPA and NJPA Members." We are looking for consistent pricing and delivery mechanisms and an understanding of what value the proposal brings to NJPA and NJPA Members. 4.34 Documenting the "Best Interests of NJPA and NJPA Members" when outdated equipment is being deleted is fairly straight forward since the product is no longer available and not relevant to the procurement Contract. 4.35 Requests must be in the form of 1) a cover letter to NJPA a) asking to add the product /equipment line, b) making a general statement identifying how the products to be added are within the scope of the original RFP, and c) making a general statement identifying that, if appropriate, the pricing is consistent with the existing Contract pricing and 2) the detail as to what is being added at what price will then be an attachment to that cover letter. Pending approval of your request by NJPA you will need to provide a complete re- statement of all pricing including all new prices /products AND existing prices and products /equipment. 4.36 NJPA's intent is to encourage Proposers to provide and document NJPA's due diligence in a clear and concise one page format on which we can approve and sign our acknowledgment and acceptance. 18 Revision 1 -7 -13 EXHIBIT 2 This information must ultimately come from Proposers, and NJPA is requiring it in this format. J. REQUESTING PRICING CHANGES 4.37 Price Decreases: Requests for standard Contract price decrease adjustments (percentage discount increases) are encouraged and will be allowed at any time based on market place efficiencies, market place competitiveness, improved technologies and /or improved methods of delivery or if Vendor engages in innovative procurement practices such as strategic sourcing, aggregate and volume purchasing. NJPA expects Vendors to propose their very best prices and anticipates price reductions due to the advancement of technologies and market place efficiencies. Documenting the "Best Interests of NJPA and NJPA Members" is highly valued when we are documenting price reductions. 4.38 Price increases: Requests for standard contract price increases (or the inclusion of new generation products /equipment /services at higher prices) can be made at any time. These requests will again be evaluated by NJPA based on the best interests of NJPA and NJPA Members. As an example, typically acceptable requests for price increases for existing equipment/products and services may cite increases to the Vendor of input costs such as petroleum or other applicable commodities. Typically acceptable requests for price increases for new equipment /products and services enhance or improve on the current solutions currently offered as well as cite increases in utility of the new compared to the old. Vendors are requested to reasonably document the claims cited in their requests. Your written request for a price increase, therefore, is an exercise in describing what you need, and a justification for why you need it in sufficient detail for NJPA to deem such change to be in the best interests of ourselves and our Members. 4.39 Price Change Request Format: An awarded Proposer will use the format of a cover letter requesting price increases in general terms (a 5% increase in product line X) and stating their justification for that price increase (due to the recent increase in petroleum or raw material costs) by product category. Specific details for the requested price change must be attached to the request letter identifying product/services where appropriate, both current and proposed pricing. Attachments such as letters from suppliers announcing price increases are appropriate for documenting your requests here. K. PRICE AND PRODUCT CHANGES FORMAT 4.40 NJPA's due diligence regarding product and price change requests is to consider the reasonableness of the request and document consideration on behalf of our members. Submit the following documentation to request a pricing change: 4.40.1 A cover letter: a. Please address the following subjects in your cover letter: i. What product /equipment and related service prices are changing? ii. How much are the prices changing? iii. Why are the prices changing? iv. Any additions or deletions from the previous product /equipment and related services list and the reason for the changes. b. The specifics of the product /equipment and price changes will be listed in the excel spreadsheets identified below. Please take a more general "Disclosure" approach to identifying changes in the cover letter. i. If applicable and for example, indicate "All paper equipment /products and services increased 5 % in price due to transportation and fuel costs." ii. If applicable, for instance, indicate, "The 6400 series floor polisher added to the product list is the new model replacing the 5400 series. The 6400's 3% price increase reflects the rate of inflation over the past year. The 5400 series is now included in the "Hot List" at a 20% discount from previous pricing until remaining inventory is liquidated." 19 Revision 1 -7 -13 EXHIBIT 2 4.40.2 An excel spreadsheet identifying all equipment /products and services being offered and their pricing. Each subsequent pricing update will be saved using the naming convention of "(Vendor Name) pricing effective XX /XX /XXXX." a. Include all equipment /products and services regardless of whether their prices have changed. By observing this convention we will: i. Reduce confusion by providing a single, easy to find, current pricing sheet for each Vendor. ii. Create a historical record of pricing. L. SINGLE STATEMENT OF PRICING /HISTORICAL RECORD OF PRICING 4.41 Initially; and again with each request for product addition, deletion, and /or pricing change; you must state all pricing for all equipment /products and services available. The request for price changes described above will serve as the documentation for those requested changes. Each complete pricing list will be identified by its "Effective Date." Each successive price listing identified by its "Effective Date" will create a "Product and Price History" for the Contract. 4.42 Proposers may use the multiple tabs available in an Excel workbook to separately list logical product groupings or to separately list product and service pricing as they see fit. 4.43 All equipment/products and services together with their pricing, whether changed within the request or remaining unchanged, will be stated on each "Pricing" sheet created as a result of each request for product, service, or pricing change. 4.44 Each subsequent "Single Statement of Product and Pricing" will be archived by its effective date therefore creating a product and price history for any Contract resulting from this RFP. Proposers are required to create a historical record of pricing annually by submitting updated pricing referred to as a "Single Statement of Product/Equipment and Related Services Contract Price Update ". This pricing update is required at a minimum of once per contract year. M. PAYMENT TERMS 4.45 Payment terms will be defined by the Proposer in the Proposer's Response. Proposers are encouraged to offer payment terms through P Card services if applicable to the customary method of procurement relating to the contracted product /equipment and related services. 4.46 Leasing- If available, identify any leasing programs available to NJPA and NJPA Members as part of your proposal. Proposers should submit an example of the lease agreement to be used. Proposers should identify: • General leasing terms such as: • The percentage adjustment over /under an index rate used in calculating the internal rate of return for the lease; and • The index rate being adjusted; and • The "Purchase Option" at lease maturity ($1, or fair market value); and • The available term in months of lease(s) available. • Leasing company information such as: o The name and address of the leasing company; and o Any ownership, common ownership, or control between the Proposer and the Leasing Company. N. SALES TAX 4.47 Sales and other taxes, where applicable, shall not be included in the prices quoted. Vendor will charge state and local sales and other taxes on items for which a valid tax exemption certification has not been provided. Each NJPA Member is responsible for providing verification of tax exempt status to 20 Revision 1 -7 -13 EXHIBIT 2 Vendor. When ordering, if applicable, NJPA Members must indicate that they are tax exempt entities. Except as set forth herein, no party shall be responsible for taxes imposed on another party as a result of or arising from the transactions contemplated by a Contract resulting from this RFP. O. SHIPPING AND SHIPPING PROGRAM 4.48 Shipping program for material only proposals, or sections of proposals, must be defined as a part of the cost of product/equipment. If shipping is charged to NJPA or NJPA Member, only the actual cost of delivery may be added to an invoice. Shipping charges calculated as a percentage of the product price may not be used, unless such charges are lower than actual delivery charges. No COD orders will be accepted. It is desired that delivery be made within ninety -days (90) of receipt of the Purchase Order. See "The Total Cost of Acquisition" for the equipment /products and related services. 4.49 Any shipping cost charged to NJPA or NJPA Members will be considered to be part of "proposal pricing." 4.50 Additional costs for expedited deliveries will be at the additional shipping or handling expense to the NJPA Member. 4.51 Selection of a carrier for shipment will be the option of the party paying for said shipping. Use of another carrier will be at the expense of the requester. 4.52 Proposers must define their shipping programs for Alaska and Hawaii and any location not served by conventional shipping services. Over -size and over - weight items and shipments may be subject to custom freight programs. 4.53 Proposals containing restocking fees are less advantageous than those not containing re- stocking fees. That being said, certain industries cannot avoid restocking fees. Certain industries providing made to order product /equipment may not allow returns. With regard to returns and restocking fees, Proposers will be evaluated based on the relative flexibility extended to NJPA and NJPA Members relating to those subjects. Where used, restocking fees in excess of 15% will be considered excessive. Restocking fees may be waived, at the option of the Proposer /Vendor. Indicate all shipping and re- stocking fees in price program. 4.54 Proposer agrees shipping errors will be at the expense of the Vendor. For example, if a Vendor ships a product that was not ordered by the member, it is the responsibility of the Vendor to pay for return mail or shipment at the convenience of the member. 4.55 Unless specifically stated otherwise in the "Shipping Program" of a Proposer's Response, all prices quoted must be F.O.B. destination with the freight prepaid by the Vendor. Delivery effectiveness is very important aspect of this Contract. If completed deliveries are not made at the time agreed, NJPA or NJPA Member reserves the right to cancel and purchase elsewhere and hold Vendor accountable. If delivery dates cannot be met, Vendor agrees to advise NJPA or NJPA Member of the earliest possible shipping date for acceptance by NJPA or NJPA Member. 4.56 Delivered products /equipment must be properly packaged. Damaged products /equipment will not be accepted, or if the damage is not readily apparent at the time of delivery, the products /equipment product /equipment shall be returned at no cost to NJPA or NJPA Member. NJPA and NJPA Members reserve the right to inspect the product/equipment at a reasonable time subsequent to delivery where circumstances or conditions prevent effective inspection of the product/equipment at the time of delivery. 4.57 Vendor shall deliver Contract conforming products /equipment in each shipment and may not substitute products /equipment without approval from NJPA Member. 21 Revision 1 -7 -13 EXHIBIT 2 4.58 NJPA reserves the right to declare a breach of Contract if the Vendor intentionally delivers substandard or inferior products /equipment which are not under Contract and described in its paper or electronic price lists or sourced upon request to any member under this Contract. In the event of the delivery of a non- conforming product /equipment, NJPA Member will immediately notify Vendor and the Vendor will replace non - conforming product /equipment with conforming product /equipment acceptable to the NJPA member. 4.59 Throughout the term of the Contract, Proposer agrees to pay for return shipment on product /equipment that arrives in a defective or inoperable condition. Proposer must arrange for the return shipment of damaged product /equipment. 4.60 Unless contrary to other parts of this solicitation, if the product/equipment or the tender of delivery fail in any respect to conform to this Contract, the purchasing member may: 1) reject the whole, 2) accept the whole or 3) accept any commercial unit or units and reject the rest. P. NORMAL WORKING HOURS 4.61 Prices quoted are for equipment/products and services delivered during normal business hours. Normal Business hours will be as specifically defined herein, defined through industry standards OR defined through statement contained in the purchase /work order issued pursuant to a Contract resulting from this RFP. 5. MARKETING PLAN 5_1 Internal Marketing Plan: If you are awarded a contract based on this solicitation, your sales force will be the primary source of the contract success. Your sales force needs to be aware that the value of the contract includes: • The use of the NJPA Contract will save their customer (NJPA's Member) the time and effort of bringing a new individual Request For Proposal (RFP). • The use of the NJPA Contract will save you and your sales force the time and effort of responding to individual Request For Proposals (RFPs). • The use of the NJPA Contract will offer NJPA members the opportunity to have the ability to choose your company's contracted product /equipment and related services. An award of Contract resulting from this RFP is an opportunity for the awarded Vendor to pursue commerce with, and deliver valued contracted products /equipment and related service solutions to NJPA and NJPA Members nationwide. Your internal marketing plan should serve to: 5.1.1 Identify the appropriate levels of sales management whom will need to understand the value of, and the internal procedures necessary to deliver your Contract solution to NJPA and NJPA Members through your marketing and sales efforts. 5.1.2 Identify, in general, your national footprint and dedicated feet -on- the - street sales force that will be carrying this Contract message and opportunity in the field to NJPA Members. Outline the sale force network in terms of numbers and geographic location and distribution of the product/equipment and related services. Service may be independent of the sales of the product/ equipment. Demonstrate fully the sales and service capabilities of your company through your response. 5.1.2.1 Identify whether your sales force are employees or independent contractors. Identify whether your dealers are company owned or independently owned. 5.1.3 Identify your plan for delivering training to these individuals. 22 Revision 1 -7 -13 EXHIBIT 2 5.1.3.1 Will you have your sales force or dealer network gathered at national or regional events in the near future? Does you sales force or dealer network have the ability to participate in sales training webinar or webcast events? 5.1.3.2 NJPA is prepared to provide our personnel for sales training and /or on a webinar or webcast or other methodologies to effectively reach the appropriate groups within your sales management, dealer network and sales force. 5.1.4 Sales Management Contract Training. 5.1.4.1 NJPA will commit to providing contract sales training regarding all aspects of communicating the value of the Contract itself, the authority of NJPA to offer the Contract to its Members, the value the Contract delivers to NJPA Members, the scope of NJPA Membership, and the authority of NJPA Members to utilize NJPA procurement contracts. 5.1.4.2 Your Sales Management will be needed to provide training regarding employee compensation and internal procedures when delivering the Contract opportunity, and how this Contract purchasing opportunity relates with other such opportunities available. 5_2 Success in marketing is dependent upon 1) the delivery of value as defined in section 1.4, 2) the delivery of knowledge of the contract and its proper use and utility, and 3) the delivery of the contracted products /equipment and related services and the sales reward which creates a personal commitment to the contract. NJPA desires a marketing plan that: 5.2.1 identifies the value to a member of a delivered a competitively proposed national cooperative procurement contract that reduces the need by both the NJPA Member and the Vendor /Vendor's sales staff of the responsibility to facilitate and responding to multiple and similar individual RFP's; 5.2.2 identifies the appropriate Vendor personnel from both management and sales staff who will be trained on the sales and marketing methods, strategy, use and utility of such a contract and a general schedule of when and how those individuals will be trained; and 5.2.3 identifies in general how the reward system for the marketing, delivery, and service chain of the Vendor will be affected by the implementation of the proposed Contract and how that will be proposed to those individuals in terms of the value created for them and their departments in 5. 1.1 above. 5_3 External Marketing Plan: NJPA is seeking the ability to serve all our current and potential members nationwide. The Proposer must demonstrate the ability to both market and service their products /equipment and related services to NJPA current and potential members nationwide. As a part of your Marketing Plan, demonstrate your sales and service network and the capability to staff, communicate and offer the contract opportunity while demonstrating your commitment to serving NJPA and NJPA Members nationwide through the awarded contract. 5_4 The Proposer must exhibit the willingness and ability to develop marketing materials and participate in marketing venues such as: 5.4.1 Printed Marketing Materials. Proposer will initially produce and thereafter maintain full color print advertisements in camera ready electronic format including company logos, identifying the Vendor, the Vendor's general utility for NJPA and NJPA Members, and contact information to be used by NJPA and NJPA Members in a full page, half page, and quarter page formats. These advertisements will be used in the NJPA directory and other marketing publications. 23 Revision 1 -7 -13 EXHIBIT 2 5.4.2 Contract announcements and advertisements. Proposer will identify a marketing plan identifying their anticipated contract announcements, advertisements in industry periodicals, or other direct or indirect marketing activities. 5.4.3 Proposer's Website. Proposer will identify how an Awarded Contract will be displayed on the Proposer's website. An on -line shopping experience for NJPA and NJPA Members is desired when applicable and will be viewed as a value -added attribute to a Proposer's Response. 5.4.4 Trade Shows. Proposer will outline their proposed involvement in the promotion of a Contract resulting from this RFP through applicable trade shows. Proposers are encouraged to identify tradeshows and other appropriate venues for the promotion of any such Contract. Proposers are encouraged to consider participation with NJPA at NJPA embraced national trade shows. Examples of such could include: NAEP National Association of Education Procurement I -ASBO International Association of School Business Officials NIGP National Institute of Government Purchasing 5_5 Proposer must also work in cooperation with NJPA to develop a marketing strategy and provide avenues to equally market and drive sales through the Contract and program to all NJPA Members nationally. Awarded Vendor agrees to actively market in cooperation with NJPA all contracted equipment /products and services to current and potential NJPA Members. NJPA reserves the right to deem a Proposer non - responsive or to waive an award based on an unacceptable marketing plan. 5_6 As a part of this response, submit a complete Marketing Plan on how you would help NJPA roll out this program to current and potential NJPA Members. NJPA requires the Awarded Vendors actively promote the Contract in cooperation with the NJPA. Proposers are advised to consider marketing efforts in the areas of 1) Website Link from Proposer's website to NJPA's website, 2) Attendance and participation with a display booth at national and regional trade shows and meetings when the event is applicable to the Proposer's customer vertical, and 3) Sales team and sales training programs involving both Proposer's sales management and NJPA staff. 5_7 Facilitating NJPA Membership: Proposer should express their commitment to develop a process to establish membership status of current and potential agencies with NJPA as a part of the sales or customer communication process. 5.7.1 Membership information: Proposer should further express their commitment to capturing sufficient member information as is deemed necessary by NJPA to appropriately facilitate membership. 6. PROPOSAL OPENING PROCEDURE 6.1 Sealed and properly identified Proposer's Responses for this RFP entitled "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" will be received by Gregg Meierhofer, Manager of Bids and Contracts, at NJPA Offices, 202 12th Street NE, Staples, MN 56479 until the deadline for receipt of, and proposal opening identified on page one of this RFP. We document the receipt by using an atomic clock; an NJPA employee electronically time and date stamps all Proposals immediately upon receipt. The NJPA Director of Contracts and Marketing, or Representative from the NJPA Proposal Evaluation Committee, will then read the Proposer's names aloud. A summary of the responses to this RFP will be made available for public inspection in the NJPA office in Staples, MN. A letter or e-mail request is required to receive a complete RFP package. Send or communicate all requests to the attention of Gregg Meierhofer 202 12th Street Northeast Staples, MN 56479 or RFP @njpacoop.org to receive a complete copy of this RFP. Method of delivery needs to be 24 Revision 1 -7 -13 EXHIBIT 2 indicated in the request; an email address is required for electronic transmission. Oral, facsimile, telephone or telegraphic Proposal Submissions or requests for this RFP are invalid and will not receive consideration. All Proposal Responses must be submitted in a sealed package. The outside of the package shall plainly identify "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" To avoid premature opening, it is the responsibility of the Proposer to label the Proposal Response properly. 7. EVALUATION OF PROPOSALS A. PROPOSAL EVALUATION PROCESS 7_1 Overall Evaluation (FORM G) - The NJPA Proposal Evaluation Committee will evaluate proposals received based on a 1,000 point evaluation system. The Committee will establish both the evaluation criteria and designate the relative importance of those criteria by assigning possible scores for each category. 7_2 NJPA will use a 1,000 Point Evaluation System to help determine the best overall Proposer(s) selection. Bonus points may be available for specific proposal characteristics identified such as "Green Product Certifications." 7.2.1. Bonus Evaluation Points- Bonus evaluation points may be awarded by the NJPA Proposal Evaluation Committee based on criteria identified as being both "optional" and "having additional value." 7_3 NJPA shall use a final overall scoring system to include consideration for best price and cost evaluation. The total possible score is 1,000 points. NJPA reserves the right to assign any number of point awards or penalties it considers warranted if a Proposer stipulates exceptions, exclusions, or limitations of liabilities. 7.4 Responses will be evaluated first for responsiveness and thereafter for content. The NJPA Board of Directors will make awards to the selected Proposer(s) based on the recommendations of the Proposal Evaluation Committee. 7_5 To qualify for the final evaluation, a Proposer must have been deemed responsive as a result of the criteria set forth under "Proposer Responsiveness." 7_6 NJPA uses a variety of evaluation methodologies, including but not limited to a cost comparison of specific and deemed to be like equipment /products. These processes establish final points for submitted price levels. 7_7 The procurement activities of the NJPA Proposal Evaluation Committee are limited to document preparation, answering Proposer questions, advertising the solicitation, distribution of this RFP upon request, conducting an evaluation and making recommendation for possible approval to NJPA Board of Directors. B. PROPOSER RESPONSIVENESS 7_8 Proposer's Response received after the deadline for submission will be invalid and returned to the Potential Proposer unopened. 7_9 An essential part of the proposal evaluation process is an evaluation to qualify the Proposer being considered. All proposals must contain answers or responses to the information requested in the proposal forms. Any Proposer failing to provide the required documentation may be considered non - responsive. 7.10 Deviations or exceptions stipulated in Proposer's Response may result in the proposal being classified as non - responsive. 25 Revision 1 -7 -13 EXHIBIT 2 7.11 To qualify for evaluation, a proposal must have been submitted on time and materially satisfy all mandatory requirements identified in this document. A proposal must reasonably and substantially conform to all the terms and conditions in the solicitation to be considered responsive. 7.12 The Proposal Evaluation Committee shall utilize the following criteria to evaluate all proposals received. Items 1 -4 constitute the test for "Level One Responsiveness" and are determined on the proposal opening date. "Level 2" responsiveness is determined through the evaluation of the remaining items listed under Proposal Evaluation Criteria. These items are not arranged in order of importance and each item may encompass multiple areas of information requested. 1. The proposal response is received prior to the deadline for submission. 2. The proposal package was properly addressed and identified as a sealed proposal with a specific opening date and time. 3. The proposal response contains the required certificate of liability insurance. 4. The proposal response contains original signatures on all documents requiring such. C. PROPOSAL EVALUATION CRITERIA 7.13 Reduction of Evaluation Points. The following items will be sufficient cause to reduce evaluation points. 7.13.1 If a manufacturer or supplier chooses not to produce or supply a full selection and representation of product /equipment and related services it has available which fall within the scope of this RFP, such action will be considered sufficient cause to reduce evaluation points. 7.14 Evaluation Criteria 7.15 Evaluation of each Proposer's Response will take into consideration as a minimum response but not necessarily limited to the following: 1. Adherence to all requirements of this RFP as defined by industry standards. 2. Prior knowledge of and experience with a Proposer in terms of past performance and market place success. 3. Capability of meeting or exceeding current and future needs or requirements of NJPA and NJPA Members. 4. Evaluation of Proposer's ability to market to and provide service to all NJPA Members nationally. 5. Financial condition of the Proposer. 6. Nature and extent of company data furnished in Proposer's Response. 7. Quality of products, equipment, and services offered including value added related services. 8. History of member service to NJPA type customers. 9. Overall ability to perform sales, solutions and contract support as submitted. 10. Ability to meet service and warranty needs. 11. History of meeting shipping and delivery expectations of contracted products/ services. 12. Technology advancements and related provisions. 13. Ability to market and promote the Contract within current business practices. 14. Willingness to develop and enter into NJPA Contract and business relations. 15. Favorable bond rating and applicable industry standard licensing ability. 16. Past market place successes and brand recognition. 17. Demonstrated warranty and product /service responsibility. 18. Possesses qualifications as a responding Proposer that meets or exceeds those set within the solicitation. 19. Information from government and education references and past performance information including past agency approval. 20. Demonstrates that they offer the most current industry standard equipment /products and related 26 Revision 1 -7 -13 EXHIBIT 2 services and /or services. 21. Demonstrates financial stability as a company and a favorable banking line of credit. 22. Demonstrates their equipment/products and related services proposed meet and /or exceed industry standards accepted by educational or governmental agencies nationally. 23. Demonstrates market place success and their past performance exhibits an acceptable reputation nationally within the government and education market place. 24. Demonstrates that the company possesses the background, knowledge, capacity, and ability to sell, deliver, and support equipment/products and related services offered to government and education and related agencies. 25. Response's conformance to terms and conditions as described in the solicitation, including documentation. 26. Has provided documentation defining, outlining, and describing their concept of a national marketing program they will be implementing to facilitate and coordinate the cooperative activities required by an awarded NJPA Contract. 27. Has provided all of the required and applicable documentation required i.e. insurance certificates, licenses, and /or registration certificates required to do business nationally. 28. Line -Item Pricing, or acceptable pricing model in approved excel format, listing of all of the proposed equipment /products and related services and warranty provisions with their associated units of costs. 29. Hot List Pricing equipment /products and related services in a Line -Item Pricing format (when applicable). 30. Contract Pricing submitted as requested to include selection of products /equipment and related services in a Line -Item Pricing and /or Percentage Discount from a published gov /ed price list or Catalog. D. OTHER CONSIDERATION 7.16 Consideration will be given in the award based on the completion and degree of information provided regarding available products /equipment, and accessories, and related services as well as, applicable parts of the Proposer Information and Questionnaire. 7.17 The Proposer is required to have extensive knowledge and at least three (3) years of experience with the related activities surrounding the selling of the product /equipment, related services or related products /equipment offered. 7.18 NJPA reserves the right to accept or reject newly formed companies solely based on information provided in the proposal and /or its own investigation of the company. 7.19 The fact a manufacturer or supplier chooses not to produce or provide equipment products or services to meet the intent and scope of this RFP will not be considered sufficient cause to adjudge this RFP as restrictive. 7.20 Consideration will be given in the proposal evaluation based upon the selection, variety, technological advances, and demonstrated quality of products submitted, technological advances, and pricing. A positive review will reflect the ability of the Proposer to communicate the value of these factors and to demonstrate how the depth and breadth of their product and service offerings provide NJPA and NJPA Members comfort and assurance understanding that the proposer accepts the sole source of responsibility of the response to the scope of this RFP. 7.21 Consideration will also be given to proposals demonstrating technological advances, provide increased efficiencies, expanded service and other related improvements beyond today's NJPA member's needs and applicable standards. 7.22 Strong consideration will be given to a Proposer's past performance, distribution model, and the 27 Revision 1 -7 -13 EXHIBIT 2 demonstration their ability to effectively market and service NJPA Membership nationally. 7.23 Strong consideration will be given to the best price as it relates to the quality of the product and service. However, price is ultimately only one of the factors taken into consideration in the evaluation and award. 7.24 The Proposer's ability to follow the proposal preparation instructions set forth in this solicitation will also be considered to be an indicator of the Proposer's ability to follow other future instructions should they receive an award as a result of this solicitation. Any Contract between NJPA and a Proposer requires the delivery of information and data. The quality of organization and writing reflected in the proposal will be considered an indication of the quality of organization and writing which would be prevalent if a Contract was awarded. As a result, the proposal will be evaluated as a sample of data submission. 7.25 Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available). The Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) are requested and reviewed to get a general feel for the size, strength, and probable scope of the Proposer. 7.26 NJPA reserves the right to reject the Proposer's Response of the apparent successful Proposer where the available evidence or information does not exhibit the ability or intent to satisfy NJPA that the potential Vendor is unable to properly carry out the terms of this RFP and potential Contract. 7.27 NJPA shall reserve the right to reject any or all proposals. NJPA also reserves the right to reject a proposal not accompanied by required certificate of insurance, other data required by this RFP, or if a Proposer's Response is incomplete or irregular. The NJPA shall reject all proposals where there has been proven or suspicion of collusion among the Proposers. E. COST COMPARISON 7.28 NJPA reserves the right to use this process in the event the Proposal Evaluation Committee feels it is necessary to make a final determination. 7.29 This process will be based on a point system with points being awarded for being low to high Proposer for each cost evaluation item selected. A "Market Basket" of identical (or substantially similar) equipment /products and related services may be selected by the NJPA Evaluation Committee and the unit cost will be used as a basis for determining the point value. The "Market Basket" will be selected by NJPA from all product categories as determined appropriate by NJPA. The low priced Proposer will receive the full point value and all other Proposers will receive points as follows: Lowest price Proposal = 5 (where there are five proposers), and inferior proposals = 4, 3, 2, 1 points each. The Total Score for each proposer will be the sum of all points earned. The result of this process shall not be the sole determination for award. F. PRODUCT TESTING 7.30 NJPA reserves the right to request and test equipment/products and related services from the apparent successful Proposer. Prior to the award of the Contract, the apparent successful Proposer, if requested by NJPA, shall furnish current information and data regarding the Proposer's resources, personnel, and organization within three (3) days. G. PAST PERFORMANCE INFORMATION 7.31 Past performance information is relevant information regarding a Proposer's actions under previously awarded contracts to schools, local, state, and governmental agencies and non - profit agencies. It includes the Proposer's record of conforming to specifications and standards of good workmanship. The Proposer's history for reasonable and cooperative behavior and commitment to member satisfaction 28 Revision 1 -7 -13 EXHIBIT 2 shall be under evaluation. Ultimately, Past Performance Information can be defined as the Proposer's businesslike concern for the interests of the NJPA Member. H. WAIVER OF FORMALITIES 7.32 NJPA reserves the right to waive any minor formalities or irregularities in any proposal and to accept proposals, which, in its discretion and according to the law, may be in the best interest of its members. 8. POST AWARD OPERATING ISSUES A. SUBSEQUENT AGREEMENTS 8_1 Purchase Order- Purchase Orders for product/equipment and related services may be executed between NJPA or NJPA Members (Purchaser) and awarded Vendor(s) or Vendor's sub - contractors pursuant to this invitation and any resulting Contract. NJPA Members are instructed to identify on the face of such Purchase orders that "This purchase order is issued pursuant to NJPA procurement contract #XXXXXX." A Purchase Order is an offer to purchase product/equipment and related services at specified prices by NJPA or NJPA Members pursuant to a Contract resulting from this RFP. Purchase Order flow and procedure will be developed jointly between NJPA and an Awarded Vendor after an award is made. 8_2 Governing Law- Purchase Orders, as identified above, shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. Each and every provision of law and clause required by law to be included in the Purchase Order shall be read and enforced as though it were included. If through mistake or otherwise any such provision is not included, or is not currently included, then upon application of either part the Contract shall be physically amended to make such inclusion or correction. The venue for any litigation arising out of disputes related to Purchase Order(s) shall be a court of competent jurisdiction to the Purchaser. 8_3 Additional Terms and Conditions- Additional terms and conditions to a Purchase Order may be proposed by NJPA, NJPA Members, or Vendors. Acceptance of these additional terms and conditions is OPTIONAL to all parties to the Purchase Order. The purpose of these additional terms and conditions is to, among other things; formally introduce job or industry specific requirements of law such as prevailing wage legislation. Additional terms and conditions can include specific local policy requirements and standard business practices of the issuing Member. Said additional terms and conditions shall not interfere with the general purpose, intent or currently established terms and conditions contain in this RFP document. 8_4 Specialized Service Requirements- In the event service requirements or specialized performance requirements such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements not addressed in the Contract resulting from this RFP, NJPA Member and Vendor may enter into a separate, standalone agreement, apart from a Contract resulting from this RFP. Any proposed service requirements or specialized performance requirements require pre- approval by Vendor. Any separate agreement developed to address these specialized service or performance requirements is exclusively between the NJPA Member and Vendor. NJPA, its agents, Members and employees shall not be made party to any claim for breach of such agreement. Product sourcing is not considered a service. NJPA Members will need to conduct procurements for any specialized services not identified as a part or within the scope of the awarded Contract. 8_5 Performance Bond- At the request of the member, a Vendor will provide all performance bonds typically and customarily required in their industry. These bonds will be issued pursuant to the requirements of Purchase Orders for product /equipment and related services. If a purchase order is cancelled for lack of a required performance bond by the member agency, it shall be the recommendation of NJPA that the current pending Purchase Order be canceled. Each member has the final decision on 29 Revision 1 -7 -13 EXHIBIT 2 Purchase Order continuation. ANY PERFORMANCE BONDING REQUIRED BY THE MEMBER OR CUSTOMER STATE LAWS OR LOCAL POLICY IS TO BE MUTUALLY AGREED UPON AND SECURED BETWEEN THE VENDOR AND THE CUSTOMER /MEMBER. B. NJPA MEMBER SIGN -UP PROCEDURE 8_6 Awarded Vendors will be responsible for familiarizing their sales and service forces with the various forms of NJPA Membership documentation and shall encourage and assist potential Members in establishing Membership with NJPA. NJPA membership is at no cost, obligation or liability to the member or the vendor. C. REPORTING OF SALE ACTIVITY 8_7 A report of the total gross dollar volume of all equipment/products and related services purchased by NJPA Members as it applies to this RFP and Contract will be provided quarterly to NJPA. The form and content of this reporting will be developed by NJPA in cooperation with the Vendor to include, but not limited to, name and address of purchasing agency, amount of purchase, and a description of the items purchased. 8.7.1 Zero sales reports: Awarded Vendors are responsible for providing a quarterly sales report of contract sales EVERY QUARTER regardless of the existence or amount of sales. D. AUDITS 8_8 During the Term, however no more than once per calendar year, Vendor(s) may be required to make available to NJPA at the Vendor's corporate offices (during normal business hours) the invoice reports and /or invoice documents from Vendor pertaining to all invoices sent by Vendor and all payments made by NJPA members for all equipment /products and related services purchased under the awarded Contract. NJPA must provide written notice of exercise of this requirement with no less than fourteen (14) business days' notice. NJPA may employ an independent auditor or NJPA may choose to conduct such audit on its own behalf. Vendor shall have the right to approve the independent auditor, which approval shall not be unreasonably withheld. Upon approval and after the auditor has executed an appropriate confidentiality agreement, Vendor will permit the auditor to review the relevant Vendor documents. NJPA shall be responsible for paying the auditor's fees. The parties will make every reasonable effort to fairly and equitably resolve discrepancies to the satisfaction of both parties. Vendor agrees that the NJPA may audit their records with a reasonable notice to establish total compliance and to verify prices charged hereunder of the Contract are being met. Vendor agrees to provide verifiable documentation and tracking in a timely manner. E. HUB PARTNER 8_9 Hub Partner: Where applicable, NJPA Members may, from time to time, request to be served in some way through a "Hub Partner" for the purposes of complying with a Law, Regulation, or Rule to which that individual NJPA Member deems to be applicable in their jurisdiction. Hub Partners may bring value to the proposed transactions through consultancy, Disadvantaged Business Entity Credits, or other considerations. 8.10 Hub Partner Fees: Fees, costs, or expenses from this Hub Partner levied upon a transaction resulting from this contract, shall be payable by the NJPA Member provide that: 8.10.1 The fees, costs, or expenses levied by the Hub Vendor must be clearly itemized in the transaction; and 8.10.2 To the extent that the Vendor stands in the chain of title during a transaction resulting from 30 Revision 1 -7 -13 EXHIBIT 2 this RFP, the documentation shall be documented to show it is "Executed for the Benefit of [NJPA Member Name]." F. TRADE -INS 8.11 Where Appropriate, the value in US Dollars for Trade -ins will be negotiated between NJPA or an NJPA Member, and an Awarded Vendor. That identified "Trade -In" value shall be credited in full against the NJPA purchase price identified in a purchase order issued pursuant to any Awarded NJPA procurement contract. The full value of the trade -in will be consideration to that purchase order. G. OUT OF STOCK NOTIFICATION 8.12 Vendor shall immediately notify NJPA members upon receipt of order(s) when an out -of -stock occurs. Vendor shall inform the NJPA member regarding the anticipated date of availability for the out - of -stock item(s), and may suggest equivalent substitute(s). • The ordering organization shall have the option of accepting the suggested equivalent substitute, or canceling the item from the order. • Under no circumstance is Proposer permitted to make unauthorized substitutions. • Unfilled or substituted item(s) shall be indicated on the packing list. H. TERMINATION OF CONTRACT RESULTING FROM THIS RFP 8.13 NJPA reserves the right to cancel the whole or any part of a resulting Contract due to failure by the Vendor to carry out any obligation, term or condition as described in the below procedure. Prior to any termination for cause, the NJPA will provide written notice to the Vendor, opportunity to respond and opportunity to cure according to the steps in the procedure in this Cancellation Section. Some examples of material breach are the following: • The Vendor provides products /equipment or related services that does not meet reasonable quality standards and is not remedied under the warranty; • The Vendor fails to ship the products /equipment or related services or provide the delivery and services within a reasonable amount of time; • NJPA has reason to believe the Vendor will not or cannot perform to the requirements or expectations of the Contract and issues a request for assurance as described herein and Vendor fails to respond; • The Vendor fails to observe any of the material terms and conditions of the Contract; • The Vendor fails to follow the established procedure for purchase orders, invoices and /or receipt of funds as established by the NJPA and the Vendor in the Contract. • The Vendor fails to report quarterly sales ; • The Vendor fails to actively market this Contract within the guidelines provided in this RFP and the expectations of NJPA defined in the NJPA Contract Launch. • In the event the contract has no measurable and defining value or benefit to NJPA or the NJPA member. 8.14 Each party shall follow the below procedure if the Contract is to be terminated for violations or non - performance issues: Step 1: Issue a warning letter outlining the violations and /or non - performance and state the length of time (10 days) to provide a response and correct the problem(s) if reasonably possible in such time frame. Step 2: Issue a letter of intent to cancel Contract, if the problem(s) is not resolved within fifty (50) days. Step 3: Issue letter to cancel Contract for cause. 31 Revision 1 -7 -13 EXHIBIT 2 8.15 Upon receipt of the written notice of concern, the Vendor shall have ten (10) business days to provide a satisfactory response to the NJPA. Failure on the part of the Vendor to reasonably address all issues of concern may result in Contract cancellation pursuant to this Section. 8.16 Any termination shall have no effect on purchases that are in progress at the time the cancellation is received by the NJPA. The NJPA reserves the right to cancel the Contract immediately for convenience, without penalty or recourse, in the event the Vendor is not responsive concerning the remedy, the performance, or the violation issue within the time frame, completely or in part. 8.17 NJPA reserves the right to cancel or suspend the use of any Contract resulting from this RFP if the Vendor files for bankruptcy protection or is acquired by an independent third party. Prior to commencing services under this Contract, the Proposer /Vendor must furnish NJPA certification from insurer(s) proving level of coverage usual and customary to the specific industry. The coverage is to be maintained in full effect during the Contract period. Vendor must be willing to provide, upon request, certification of insurance to any NJPA member or member using this Contract. 8.18 Either party may execute Contract termination without cause with a required 60 -day written notice of termination. Termination of Contract shall not relieve either party of financial, product or service obligations incurred or accrued prior to termination. 8.19 NJPA may cancel any Contract resulting from this solicitation without any further obligation if any NJPA employee significantly involved in initiating, negotiating, securing, drafting or creating the Contract on behalf of the NJPA is found to be in collusion with any Proposer to this RFP for their personal gain. Such cancellation shall be effective upon written notice from the NJPA or a later date if so designated in the notice given. A terminated Contract shall not relieve either party of financial, product or service obligations due to participating member or NJPA. 8.20 Events of Automatic termination to include; Vendor's or NJPA's voluntary or involuntary bankruptcy or insolvency; Vendor's failure to remedy a material breach of a Contract resulting from this RFP within sixty (60) days of receipt of notice from NJPA specifying in reasonable detail the nature of such breach; and /or, Receipt of written information from any authorized agency finding activities of Vendors engaged in pursuant to a Contract resulting from this RFP to be in violation of the law. 9. GENERAL TERMS AND CONDITIONS A. ADVERTISEMENT OF RFP 9_1 As a policy, NJPA shall advertise this solicitation 1) for two consecutive weeks in both the hard copy print and on -line editions of the MINNEAPOLIS STAR TRIBUNE, 2) for two consecutive weeks in both the hard copy print and on -line editions of Oregon's Daily Journal of Commerce, 3) it shall be placed on a national wire service and website by the MINNEAPOLIS STAR TRIBUNE, 4) it shall be posted on NJPA's website, 5) it shall be posted to the "Noticetobidders.com" website, and 6) it shall be posted to other third -party websites deemed appropriate by NJPA. Other third party advertisers may include Onvia and Bidsync. NJPA also notifies and provides solicitation documentation to each State level procurement departments for possible re- posting of the solicitation within their systems and at their option for future use and to meet specific state requirements. B. ADVERTISING OF A CONTRACT RESULTING FROM THIS RFP 9_2 Proposer /Vendor shall not advertise or publish information concerning this Contract prior to the 32 Revision 1 -7 -13 EXHIBIT 2 award being announced by the NJPA. Once the award is made, a Vendor is expected to advertise the awarded Contract to both current and potential NJPA Members. C. APPLICABLE LAW 9_3 NJPA Compliance with Minnesota Procurement Law: Contracts awarded through NJPA are intended to meet the procurement laws of all states and NJPA will exhaust all avenues to comply with each unique state law or requirement whenever possible. It is the responsibility of each participating NJPA member to ensure to their satisfaction that NJPA contracting process falls within these laws and applicable laws are satisfied. An individual NJPA member using these contracts is deemed by their own accord to be in compliance with their own requirements and procurement regulations. 9_4 Governing Law with respect to delivery and acceptance: All applicable portions of the Minnesota Uniform Commercial Code, all other applicable Minnesota laws, and the applicable laws and rules of delivery and inspection of the Federal Acquisition Regulations (FAR) laws shall govern NJPA contracts resulting from this solicitation. 9_5 Jurisdiction: Any claims pertaining to this RFP and any resulting Contract that develop between NJPA and any other party must be brought forth only in courts in Todd County in the State of Minnesota. 9.5.1 Purchase Orders issued pursuant to a contract resulting from this solicitation shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. 9_6 Vendor Compliance with applicable law: Vendor(s) shall comply with all federal, state, or local laws applicable to or pertaining to the transaction, acquisition, manufacturer, suppliers or the sale of the equipment/products and relating services resulting from this RFP. 9_7 Applicable Laws, whether or not herein contained, shall be included by this reference. It shall be Proposer's /Vendor's responsibility to determine the applicability and requirements of any such laws and to abide by them. 9_8 Indemnity: Each party agrees it will be responsible for its own acts and the result thereof to the extent authorized by law and shall not be responsible for the acts of the other party and the results thereof. NJPA's liability shall be governed by the provisions of the Minnesota Tort Claims Act, Minnesota Statutes, Section §3.736, and other applicable law. 9_9 Prevailing Wage: It shall be the responsibility of the Vendor to comply, when applicable, with prevailing wage legislation in effect in the jurisdiction of the purchaser (NJPA or NJPA Member). It shall be the responsibility of the Vendor to monitor the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of this Contract and adjust wage rates accordingly. 9.10 Patent and Copyright infringement: If an article sold and delivered to NJPA or NJPA Members hereunder shall be protected by any applicable patent or copyright, the Vendor agrees to indemnify and save harmless NJPA and NJPA Members against any and all suits, claims, judgments, and costs instituted or recovered against it by any person whosoever on account of the use or sale of such articles by NJPA or NJPA Members in violation or right under such patent or copyright. D. ASSIGNMENT OF CONTRACT 9.11 No right or interest in this Contract shall be assigned or transferred by the Vendor without prior written permission by the NJPA. No delegation of any duty of the Vendor shall be made without prior written permission of the NJPA. The NJPA shall notify the members within fifteen (15) days of receipt of written notice by the Vendor. After issuance the awarded Contract may be reassigned to a comparable 33 Revision 1 -7 -13 EXHIBIT 2 and acceptable Vendor at the discretion of NJPA. 9.12 If the original Vendor sells or transfers all assets or the entire portion of the assets used to perform this Contract, a successor in interest must guarantee to perform all obligations under this Contract. NJPA reserves the right to reject the acquiring person or entity as a Vendor. A simple change of name agreement will not change the contractual obligations of the Vendor. E. LIST OF PROPOSERS 9.13 NJPA will not maintain or communicate to a list of proposers. All interested proposers must respond to the solicitation as a result of NJPA solicitation advertisements indicated. Because of the wide scope of the potential Members and qualified national Vendors, NJPA has determined this to be the best method of fairly soliciting proposals. F. CAPTIONS, HEADINGS, AND ILLUSTRATIONS 9.14 The captions, illustrations, headings, and subheadings in this solicitation are for convenience and ease of understanding and in no way define or limit the scope or intent of this request. G. DATA PRACTICES 9.15 All materials submitted in response to this RFP will become property of the NJPA and will become public record in accordance with Minnesota Statutes, section 13.591, after the evaluation process is completed. If the Responder submits information in response to this RFP that it believes to be trade secret materials, as defined by the Minnesota Government Data Practices Act, Minnesota Statute § 13.37, the Responder must: • clearly mark all trade secret materials in its response at the time the response is submitted, • include a statement with its response justifying the trade secret designation for each item, and • defend any action seeking release of the materials it believes to be trade secret, and indemnify and hold harmless the NJPA, its agents and employees, from any judgments or damages awarded against the NJPA in favor of the party requesting the materials, and any and all costs connected with that defense. This indemnification survives the NJPA's award of a contract. In submitting a response to this RFP, the Responder agrees that this indemnification survives as long as the trade secret materials are in possession of the NJPA. Proposer can redact additional confidential information at any time after the evaluation process if appropriate legal justification is provided. H. ENTIRE AGREEMENT 9.16 The Contract, as defined herein, shall constitute the entire understanding between the parties to that Contract. 9.17 A Contract resulting from this RFP is formed when the NJPA Board of Directors approves and signs the applicable Contract Award Form document (see Form E). 1. FORCE MAJEURE 9.18 Except for payments of sums due, neither party shall be liable to the other nor deemed in default under this Contract if and to the extent that such party's performance of this Contract is prevented due to force majeure. The term "force majeure" means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence including, but not limited to, the following: acts of 34 Revision 1 -7 -13 EXHIBIT 2 God, acts of the public enemy, war, riots, strikes, mobilization, labor disputes, civil disorders, fire, flood, snow, earthquakes, tornadoes or violent wind, tsunamis, wind shears, squalls, Chinooks, blizzards, hail storms, volcanic eruptions, meteor strikes, famine, sink holes, avalanches, lockouts, injunctions - intervention -acts, terrorist events or failures or refusals to act by government authority and /or other similar occurrences where such party is unable to prevent by exercising reasonable diligence. The force majeure shall be deemed to commence when the party declaring force majeure notifies the other party of the existence of the force majeure and shall be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming performance in accordance with a Contract resulting from this RFP. Force majeure shall not include late deliveries of equipment /products and services caused by congestion at a manufacturer's plant or elsewhere, an oversold condition of the market, inefficiencies, or other similar occurrences. If either party is delayed at any time by force majeure, then the delayed party shall notify the other party of such delay within forty-eight (48) hours. J. GRATUITIES 9.19 NJPA may cancel an awarded Contract by written notice if it is found that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Vendor or any agent or representative of the Vendor, to any employee of the NJPA are deemed to be excessive with a view or demonstrated intent toward securing a contract or with respect to the performance of a pending or awarded Contract. K. HAZARDOUS SUBSTANCES 9.20 Proper and applicable Material Safety Data Sheets (MSDS) that are in full compliance with OSHA's Hazard Communication Standard must be provided by the Vendor to NJPA or NJPA Member at the time of purchase. L. LEGAL REMEDIES 9.21 All claims and controversies between NJPA and Vendor shall be subject to the laws of the State of Minnesota and are to be resolved in Todd County, Minnesota, the county in which NJPA is located and domiciled. M. LICENSES 9.22 Proposer shall maintain a current status on all required federal, state, and local licenses, bonds and permits required for the operation of the business that is anticipated to be conducted with NJPA and NJPA members by the Proposer. 9.23 All responding Proposers must be licensed (where required) and have the authority to sell and distribute offered equipment /products and related services to NJPA and NJPA Members nationally. Documentation of required said licenses and authorities, if applicable, is requested to be included in the proposer's response. N. MATERIAL SUPPLIERS AND SUB - CONTRACTORS 9.24 The awarded Vendor shall be required to supply the names and addresses of sourcing suppliers and sub - contractors as a part of the purchase order when requested by NJPA or the NJPA member. 9.25 Awarded Vendors under this RFP will be the sole source of responsibility for transactions originating that award. The Awarded Vendor is solely responsible for equipment/products and related services and products /equipment and related services provided by third -party sourcing or service providers. 0. NON - WAIVER OF RIGHTS 35 Revision 1 -7 -13 EXHIBIT 2 9.26 No failure of either party to exercise any power given to it hereunder, nor to insistence upon strict compliance by the other party with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof, nor any payment under a Contract resulting from this RFP shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. Failure by NJPA to take action or assert any right hereunder shall not be deemed as waiver of such right. P. PROTESTS OF AWARDS MADE 9.27 Protests shall be filed with the NJPA's Executive Director and shall be resolved in accordance with appropriate Minnesota state statutes. Protests will only be accepted from Proposers. A protest must be in writing and filed with NJPA. A protest of an award or proposed award must be filed within ten (10) days after the public notice or announcement of the award. No protest shall lie for a claim that the selected Proposer is not a responsible Proposer. A protest must include: 1. The name, address and telephone number of the protester; 2. The original signature of the protester or its representative (you must document the authority of the Representative); 3. Identification of the solicitation by RFP number; 4. Identification of the statute or procedure that is alleged to have been violated; 5. A precise statement of the relevant facts; 6. Identification of the issues to be resolved; 7. The aggrieved party's argument and supporting documentation; 8. The aggrieved party's statement of potential financial damages; 9. A protest bond in the name of NJPA and in the amount of 10% of the aggrieved party's statement of potential financial damages. Q. PROVISIONS REQUIRED BY LAW 9.28 Proposer agrees in the performance of a Contract resulting from this RFP, it has complied with or will comply with all applicable statutes, laws, regulations, and orders of the United States and any State thereof. R. RIGHT TO ASSURANCE 9.29 Whenever one party to the awarded Contract has reason to question the other party's intent to perform, he /she may demand a written assurance of this intent. In the event a demand is made and no written assurance is given, the demanding party may treat this failure as an anticipatory repudiation of the Contract provided, however, in order to be effective, any such demand shall be addressed to the authorized signer for the party from whom the assurance is being sought, and sent via U.S. Postal Service, certified mail, return receipt requested or national overnight delivery service with proof of delivery. S. SUSPENSION OR DISBARMENT STATUS 9.30 If within the past five (5) years, any firm, business, person or Proposer responding to NJPA solicitation and submitting a proposal has been lawfully terminated, suspended or precluded from participating in any public procurement activity with a federal, state or local government or education agency the Proposer must include a letter with its response setting forth the name and address of the public procurement unit, the effective date of the suspension or debarment, the duration of the suspension or debarment and the relevant circumstances relating to the suspension or debarment. Any failure to supply such a letter or to disclose pertinent information may result in the cancellation of any Contract. By signing the proposal affidavit, the Proposer certifies that no current suspension or debarment exists. T. AFFIRMATIVE ACTION AND IMMIGRATION STATUS CERTIFICATION 36 Revision 1 -7 -13 EXHIBIT 2 9.31 An Affirmative Action Plan, Certificate of Affirmative Action or other documentation regarding Affirmative Action may be required by certain Members may be required by NJPA' or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. 9.32 Immigration Status Certification may be required by NJPA or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. U. SEVERABILITY 9.32 In the event that any of the terms of a Contract resulting from this RFP are in conflict with any rule, law, statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from an awarded Contract resulting from this RFP, but such invalidity or unenforceability shall not invalidate any of the other terms of an awarded Contract resulting from this RFP. V. RELATIONSHIP OF PARTIES 9.33 No Contract resulting from this RFP shall be considered a contract of employment. The relationship between NJPA and an Awarded Contractor is one of independent contractors each free to exercise judgment and discretion with regard to the conduct of their respective businesses. The parties do not intend the proposed Contract to create, or is to be construed as creating a partnership, joint venture, master - servant, principal— agent, or any other relationship. Except as provided elsewhere in this RFP, neither party may be held liable for acts of omission or commission of the other party and neither party is authorized or has the power to obligate the other party by contract, agreement, warranty, representation or otherwise in any manner whatsoever except as may be expressly provided herein. 10. FORMS [THE REST OF THIS PAGE WAS LEFT INTENTIONALLY BLANK. FORMS BEGIN ON NEXT PAGE] 37 Revision 1 -7 -13 EXHIBIT 2 Form A r�1:11�1� "�� PROPOSER QUESTIONNAIRE- General Business Information (Products, Pricing, Sector Specific, Services, Terms and Warranty are addressed on Form P Proposer Name: Questionnaire completed by: Please provide an answer to all questions below and address all requests made in this RFP. Please use the Microsoft Word /Excel document version of this questionnaire to respond to the questions contained herein. Please provide your answer to each question indented below the question. Please supply any applicable supporting information and documentation you feel appropriate in addition to answers entered to the Word document. All information must be typed, organized, and easily understood by evaluators. Company Information 1) Why did you respond to this RFP? 2) What are your company's expectations in the event of an award? 3) Provide the full legal name, address, tax identifications number, and telephone number for your business. 4) Provide a copy of your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) for your organization. 5) Does your company name match the name identified on your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available)? If no, why not? 6) Provide a brief history of your company that includes your company's core values and business philosophy. 7) Provide profiles and an organizational chart for key management, sales management and marketing executives of your company that will oversee and ensure the successful implementation, execution and operation of a Contract resulting from this RFP. 8) How long has your company been in the "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", industry? 9) Is your organization best described as a manufacturer or a distributor /dealer /re- seller for a manufacturer of the products /equipment and related services being proposed? a) If the Proposer is best described as a re- seller, manufacturer aggregate, or distributor, please provide evidence of your authorization as a dealer /re- seller /manufacturer aggregate for the manufacturer of the products /equipment and related services you are proposing. b) If the Proposer is best described as a manufacturer, please describe your relationship with your sales /service force and /or Dealer Network in delivering the products /equipment and related services proposed. c) Are these individuals your employees, or the employees of a third party? d) If applicable, is the Dealer Network independent or company owned? 10) Please provide your bond rating, and /or a credit reference from your bank. 11) Provide a detailed explanation outlining the licenses and certifications that are both required to be held, and actually held by your organization in pursuit of the commerce and business contemplated by this RFP. 12) Provide a detailed explanation outlining licenses and certifications both required to be held, and actually held, by third parties and sub - contractors to your organization in pursuit of the commerce contemplated by this RFP. If not applicable, please respond with "Not Applicable." 13) Provide all "Suspension or Disbarment" information as defined and required herein. See Section U 9.31. Industry- Marketplace Successes 14) List and document recent industry awards and recognition. 15) Supply three references /testimonials from customers of like status to NJPA Members to include Government and 38 Revision 1 -7 -13 EXHIBIT 3 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE ORDER THROUGH NATIONAL JOINT POWERS ALLIANCE (NJPA) CONTRACT# 022113 -CXT FOR THE PURCHASE OF PREFABRICATED CONCRETE RESTROOM BUILDINGS TO BE LOCATED AT CITY OF DENTON NORTH LAKES PARK FIELDS 5 AND 6, MACK PARK ROBERTS FIELD, AND THE RESTROOM CONCESSION AT MACK PARK; AND PROVIDING AN EFFECTIVE DATE. (FILE 5880 - AWARDED TO CXT, INC. IN THE NOT -TO- EXCEED AMOUNT OF $757,073). WHEREAS, pursuant to Ordinance 2015 -076, the National Joint Powers Alliance has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the National Joint Powers Alliance program at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 5880 CXT, Inc. $757,073 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to the National Joint Powers Alliance for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the National Joint Powers Alliance and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the National Joint Powers Alliance, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the National Joint Powers Alliance, and related documents herein approved and accepted. EXHIBIT 3 SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5880 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 1•YKlllfiil� ! r c ►: CONTRACT AGREEMENT #5880 BY AND BETWEEN CITY OF DENTON, TEXAS AND CXT INCORPORATED THIS CONTRACT is made and entered into this _i day of September 2015, by and between CXT Incon2orated, a corporation, whose address is 3808 N. Sullivan Ro d, B]dig7. 7, , p kq! e Valley Washington 99216, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home -Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. WITHNESSETH: That for and in consideration of the payments, covenants and agreements contained herein, and under the conditions expressed in the bonds attached hereto, Contractor agrees with the Owner to commence and complete the performance of the work specified within the agreement, in the amount of $757,073.00 and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide construction services in accordance with the specifications, requirements, terms, conditions, and agreements as incorporated herein for all purposes as "Exhibit A — Exhibit I ". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Contractor Quotes for Mack Park, North Lakes, and Roberts - Pricing (Exhibit "A ") (b) Negotiated Scope of Work and Services and Technical Requirements, Drawings, Graphs, Charts, etc. (Exhibit "B "); (Technical Specifications and Drawings are available at the Office of the Purchasing Manager and at )rtt r (1 wr v.cit rrlilcILtorr.c ^arNrrlr rrrrtrrr��rrt - *�erw °ic la mr r °txrMe its al�r1: erir�u;�r1s�- a► rrrrctcrrrclrarsin�xrilrrtion- crwrttr- 1bWcls �rrlfl.I?�a:�rls�'currcr�otl�lir proposals (c) Contractor Payments and Performance Milestones (Exhibit "C "); (d) City of Denton Standard Terms and Conditions and Contractual Requirements (Exhibit «D „); (e) Special Terms and Conditions (Exhibit "E "); (f) Payment and Performance Bonds (Exhibit "F "); (g) Insurance Requirements and Documents from Contractor (Exhibit "G "); (h) Contractor's Business Information (Exhibit "H "); G) Conflict of Interest Questionnaire (Exhibit "I "); 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 this written Contract, and then to the contract documents in the sequential order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." EXHIBIT 4 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. TITLE: Senior Sales Manager — South Central Territory 800-696-5766() or 214-755-4487(c) PHONE NUMBER ....... .. . . E-MAIL ADDRESS ATTEST: M CITY OF DENTON, TEXAS A Texas Municipal Corporation M ATTEST: JENNIFER WALTERS, CITY SECRETARY LOW APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY M GEORGE C. CAMPBELL CITY MANAGER EXHIBIT 4 Exhibit A Contract Pricing Details EXHIBIT 4 Mack Park Park Pro osal Malibu Malibu with chase restroom /concession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, Interior and exterior lights, vitreous china fixtures In restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. S 137,000.00 137,000.00 Final Connection to Utilities S 4.000.00 ❑ David Rogers o-CT 4,000.00 Optional Wall Texture ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate 5 2,000.00 ou =CXT Incorporated. Rogers 0.00 Optional RoofTextureo,_we ❑ Delta Rib ❑ Exposed Aggregate S 900.00 0.00 "Front Porch" Style Privacy Screen 5 1,500.00 ❑ 0.00 Two -Tone Color Scheme $ 350.00 ❑ 0.00 Stainless Steel Plumbing Fixtures 1 2,650.00 ❑ 0.00 Electric Hand Dryers 5 2,100.00 2,100.00 Electronic Flush Valves $ 1,850.00 0 1,850.00 Electronic Lavatory Faucets 5 950.00 950.00 Exterior Mounted ADA Drinking Fountain S 2,700.00 ❑ 0.00 30- gallon Electric Water Heater S 750.00 Q 750.00 Skylight in Restroom (each) Qty: 4 $ 425.00 ❑ 0.00 Marine Grade Skylight in Restroom (each) Qty: 4 s 1,400.00 ❑ 0.00 Marine Package for Extra Corrosion Resistance s 9,000.00 ❑ 0.00 Tile Floor In Restroom $ 10,700.00 ❑ 0.00 Fiberglass Entry and Chase Doors and Frames $ 3,450.00 ❑ 0.00 VandlShleld XT $ 10,750.00 ❑ 0.00 Timed Electric Lock System (does not include chase door) s 3,115.00 ❑ 0.00 Exterior Frostproof Hose Bib with Box $ 385.00 ❑ 0.00 Stainless Steel Lavatory (concession) 5 950,00 Q 950,00 Composite Mop Sink (concession) s 850.00 ❑✓ 850.00 PaperTowel Dispenser S 85.00 ❑ 0.00 Toilet Seat Cover Dispenser $ 75.00 ❑ 0.00 Sanitary Napkin Disposal $ 48.00 ❑ 0.00 CXT Wastebasket S 38.00 ❑ 0.00 Paint Touch -up Kit - Single Cola $ 40.00 ❑ 0.00 Paint Touch -up Kit -Two Tone Color $ 50.00 ❑ 0.00 Total Cost of Selected Accessories from Accessories Price List: S 11,450.00 Estimated One -Way Transportation Costs to Site (quote): $ 11,700.00 Custom Options: Items frum Addendum Al (See Attached) $ 143,641.00 Estimated monthly payment on S year lease s 6,086.110 Total Cost per Unit Pla(exd deoab il aaixes) 15 303,791.00 This price quote is good for 60 days from date below, and is accurate I accept this quote. Please process this order. and complete. NJPA Member Number Company Name CXT Sales Representative Customer �„te � YYa � �u�saru�uur� , Da C ontra � J�3 aeC22t13•Qr Date Digitally signed by David David Rogers o-CT Inncorpporated ou =CXT Incorporated. Rogers email ry, c-US er.com, c =US Company Name CXT Sales Representative Customer �„te � YYa � �u�saru�uur� , Da C ontra � J�3 aeC22t13•Qr Date EXHIBIT 4 CXT Incorporated (800) 696-5-766 fox (509) 928-8270 Thursday, July 23, 2015 D f• rat - c m A iii i R& Santiago 26'x 1.0" Storage Sectuon with T -0 "° roh up door and separate storage area 3 56,000000 5680 000 Opflonal Wall Texture -Pupa Valley Stone Oower 3") with Horizontal Lap Upper 1 $ 9,500.00 9,500.00 IEVectrlc Cook Surface /Fire Suppression, Vent Hood, A6r Curtain (RAMS Mach) 1. 1%400.00 $ 19,400.00 Grease Trap, Wure Rack, Dispensers, Hooks, Trash Carus, & Screen Door at Concession 1 $ 4,500.,410 S 4,500.00 FRp Covering on ConceWon Cl nay 1 $ 9,825.00 $ 9,825,00 Best X19 /o Core 33T7L STK626 3 $ 41.00 12100 4) F. SOURCED PROD UCT /9 tUIPMENT /OPEN MARKET ITEMS $ 99,34&00 b Set Texas PEE Stamped Engineers Drawings, MB CertPffPcatPon, 3rd Party lnspecd on 1 $ 3,250.00 $ 3,250,00 Cred ➢t for prepayment of Engineering Services, Denton PO #171451 1 $ (1,500.00) $ (1,500.00) Performance & Payment Bond Cost 1 $ 319.00 $ 819.00 Buu6Pdl ng pad Preparation, Under Slab 4UtuPPty lines out to S', RermitsO 1 $ 41,725.00 $ 41,725.00 Site work does not include any pandscapp ng other than finish grade, ADA ramps from parking, or parking pots. Demolition not incWded 'on prpce. Flat work - Spde• allks /9iufld'un3 apron is avaHable for $3.75 per sq/ft „ -VALUE ADDED ATTRIBUTES, PRODUCTS/SERVICES $ 44,29100 TOTAL ITEMS FROM NJPA SECTION 3)G. & 4)F. $ 143,641,00 EXHIBIT 4 North Lakes Park Prop, osal EXHIBIT 4 Malibu with chase restroomlconcession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. Malibu $ 137,000.00 137,000.00 Final Connection to Utilities $ 4,000.00 Optional Wall Texture o.. ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate $ 2,000.00 Optional Roof Texture ci,*m of ❑ Delta Rib ❑ Exposed Aggregate $ 900,00 "Front Porch" Style Privacy Screen S 1,50000 Two-Tone Color Scheme S 35000 Stainless Steel Plumbing Fixtures S 2,650.00 Electric Hand Dryers $ 2,100.00 Electronic Flush Valves $ 1,850.00 Electronic Lavatory Faucets $ 950.00 Exterior Mounted ADA Drinking Fountain S 2,700.00 30- gallon Electric Water Heater $ 750.00 Skylight in Restroom (each) Qty: 4 s 425.00 Marine Grade Skylight in Restroom (each) Qty: 4 $ 1,400.00 Marine Package for Extra Corrosion Resistance S 91000.00 Tile Floor in Restroom $ 10,700,00 Fiberglass Entry and Chase Doors and Frames S 3,450,00 VandiShield XT 5 10,750.00 Timed Electric Lock System (does not Include chase door) $ 3,115.00 Exterior Frostproof Hose Bib with Box S 385.00 Stainless Steel Lavatory (concession) $ 950.00 Composite Mop Sink (concession) $ 850.00 Paper Towel Dispenser $ 85.00 Tol let Seat Cover Dispenser S 75,00 Sanitary Napkin Disposal $ 48.00 CXT Wastebasket $ 38.00 Paint Touch -up Kit - Single Cola $ 40,00 PalntTouch -up Kit -Two Tone Color $ 50.00 Total Cost of Selected Accessories from Accessories Price List: Estimated One -Way Transportation Costs to Site (quote): Custom Options: Items from Addendum A3 (See Attached) ❑,/ H Estimated monthly payment on S year lease $ 5,318.18 Total Cost per Unit Placed at Job o�J This price quote Is good for 60 days from date below, and is accurate and complete. Digitally signed by David 1109015 David DN: cn =David Rogers, o =CXT Incorporated, ou =CXT Incorporated, Rogers emso ge15f�lbfost er.corn, m, c rUS S S S IS I accept this quote. Please process this order. 4,000.00 0.00 O.OD 0.00 0.00 0.00 2,100.00 1,850.00 950.00 000 750.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 9,650.00 11,700,00 99,997.00 258,347,00 N1PA Member Number Company Name CXT Sales Reprewn ive Customer p°p � ,rwalll��,aa��rwwrsr C rP N oate Contncif022113 -M Date EXHIBIT 4 CXT Incorporated 3803 N Sulllvarn Rd, Bldg #7 Spokane VaIlaye YEA 99216 (660) 696 -5766 ff8K (509) 928-8270 Thursday, Pauly 238 2015 Job: Clly of Denton - North, y4knc - Addendum A3 j Concrete il i Site work does not Include any landscapft other than finish grade, ADA ramps from parking, or parking lots. l:Demolltlo n not uncWcled In prlce. Fiat work - Sude alks /8uullding apron Is available for $8075 per sq/fft 3) G. -VALUE ADDED ATTRIBUTES, PROD /SERVICES $ 44,171.00 TOTAL ITEMS FROM KURA SECTION 3)0. & QP. 99,997.00 rtl PrlD6 Santiago 26'x 10' Office Section with entry door. 1 $ 46,662,00 $ 46,062,00 Optional Wall Texture • Napa Valley Stone (louver 3 °) with Horizontal Lap Upper 1 70200,00 $ 7,20 0.00 50 -Amp RV Camper Electrical Outlet A 40M00 $ 400.DO Best CDR /o Core 63T7L STK626 4 $ 41.00 $ 164.DO 4) Po SOURCED PRODUCT/EQUIPMENT /OPEN MARKET rrEM $ 55@826000 1. Set Texas PE Stamped Engineers Drawings, I1H8 Ceirtofflcatlon, 3rd Party inspection 3. $ 3a250ZO $ 3,250.DC Credit for prepayment of IF.Agineerlrn8 Services„ Denton PO #171451 1 $ (1,500.00) $ (1,500-DO) Performance & Payment Bond Cost 2 $ 696 „00 696.00 8un9ldIng Pad Preparation, Under Slab UVllty lines out to 6 "® Permits" 1 $ 42,725,00 $ 41o72&00 Site work does not Include any landscapft other than finish grade, ADA ramps from parking, or parking lots. l:Demolltlo n not uncWcled In prlce. Fiat work - Sude alks /8uullding apron Is available for $8075 per sq/fft 3) G. -VALUE ADDED ATTRIBUTES, PROD /SERVICES $ 44,171.00 TOTAL ITEMS FROM KURA SECTION 3)0. & QP. 99,997.00 EXHIBIT 4 Roberts Park Pro osal EXHIBIT 4 Malibu with chase rest room /concession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, Interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. Malibu $ 137,000.00 137,000.00 Final Connection to Utilities 5 4,000.00 ❑ 4,000.00 Optional Wall Texture ay...,. ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate S 2,000.00 0.00 Optional Roof Texture -chom one ❑ Delta Rib ❑ Exposed Aggregate $ 900.00 0.00 'Front Porch" Style Privacy Screen S 1,500.00 ❑ 0.00 Two -Tone Color Scheme S 350.00 ❑ 0.00 5talnless Steel Plumbing Fixtures $ 2,650.00 ❑ 0.00 Electric Hand Dryers $ 2,100.00 ❑� 2,100.00 Electronic Flush Valves $ 1,850.00 1,850.00 Electronic Lavatory Faucets $ 950.00 950.00 Exterior Mounted ADA Drinking Fountain $ 2,700.00 ❑ 0.00 30- gallon Electric Water Heater $ 750.00 ❑✓ 750.00 Skylight in Restroom (each) Qty: 4 $ 425.00 ❑ 0.00 Marine Grade Skyl ght in Restroom (each) Qty: 4 S 1,400.00 ❑ 0.00 Marine Package for Extra Corrosion Resistance $ 9,000.00 ❑ 0.00 Tile Floor in Restroom $ 10,700.00 ❑ 0.00 Fiberglass Entry and Chase Doors and Frames $ 3,450.00 ❑ 0.00 VandlShield XT 5 10,750.00 ❑ 0,00 Timed Electric Lock System (does not include chase door) $ 3,115.00 ❑ 0.00 Exterior Frostproof Hose Bib with Box $ 385.00 ❑ 0.00 Stainless Steel Lavatory (concession) $ 950.00 ❑ 0.00 Composite Mop Sink (concession) $ 850,00 ❑ 0,00 Paper Towel Dispenser $ 85.00 ❑ 0.00 Toilet Seat Cover Dispenser $ 75.00 ❑ 0.00 Sanitary Napkin Disposal $ 48.00 ❑ 0.00 CXT Wastebasket S 38,00 ❑ 0.00 Paint Touch -up Kit - Single Color 5 40,00 ❑ 0.00 Paint Touch -up Kit -Two Tone Color $ 50,00 ❑ 0100 Total Cost of Selected Accessories from Accessories Price List: $ 9,650.00 Estimated One -Way Transportation Costs to Site (quote): S 8,775.00 Custom Options: Items from Addendum A2 (See Attached) $ 39,510.00 Total Cost per Unit Placed at Job Site: Estimated monthly payment an 5 year lease $ 3,937.79 (excludes all taxes) 15 194,935.00 This price quote is good for 60 days from date below, and is actuate I accept this quote. Please process this order. and complete. NJPA Member Number Digitally Wgned by David Rogers David 0"CXT �°corp Rogers, ou =CXT Incorporated, Rogers .,.co , c.0 a ®Ibrost er.rbm, c =US Company Name CXT Sales Represent N1, Customer rIV, � wv�,�urwwr 12 Date.. Cnnb,n wu� it -crr Date EXHIBIT 4 Exhibit B EXHIBIT 4 Scope of Work The intent of this RFP is to obtain complete construction of the work identified with the technical specifications as detailed in the quote(s), and further identified within this contract. The work for which proposals are being solicited is described in detail in the Technical Specification contained in Exhibit 2, and the Drawings in Exhibit 3 of this RFP. The proposal submission shall accurately describe the Proposer's understanding of the objectives and scope of the requested construction and provide an outline of the process to complete the requirements of the project. Special Notice and Additional Requirement(s): 1. Additional safety precautions shall be instituted by the awarded contractor, as the work environment will be in an area where citizens and employees may be present, and work safety must be coordinated with the owner. 2. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal. EXHIBIT 4 CONTRACT 5880 -CITY OF DENTON PARKS RESTROOM BUILDINGS CONSTRUCTION SCHEDULE: All tasks are deliverable after Notice to Proceed is issued. • Order Review / Contracts - 1 week • Engineering (should not need any revisions. Drawings already wet stamped and cannot be changed without new drawings). - 1 day • Submittal of final M.I. (manufacturing instructions) to City for Sign off - 1 week • Production Scheduling - 1 week • Manufacturing - 6 weeks • Finish - 4 weeks (extended lead due to concession equipment) • Schedule for Installation - 2 weeks • Installation - 1 week EXHIBIT 4 Exhibit C Contractor Payment and Performance Milestones EXHIBIT 4 1. INVOICES AND PAYMENT PROCESSING: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing.com. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of Herman Lawson, City of Denton Facilities Management, 869 South Woodrow, Denton, TX 76205. The copy may also be emailed to Mr. Herman Lawson at herman.lawsongcityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payment within the first five days of the month, and submitted on the AIA Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling #95 -0.07 and #95 -0.09. 3. PAYMENT APPLICATIONS AND PAYMENTS TO CONTRACTORS: A. Upon presentation of valid payment requests invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect /Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety -five percent (95 %) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not later than thirty (30) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless EXHIBIT 4 such excess shall have been approved by the Owner, and Owner's Representative, and in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Release of Liens and Certificate of Contractor shall be accomplished in accordance with Article 5.3 of the Standard Terms and Conditions. 5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS: The Contractor shall pay each materialman, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each materialman or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and /or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages This section has been intentionally deleted per mutual agreement of both parties. C. Cumulative Remedies Every right or remedy herein conferred upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of EXHIBIT 4 damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. EXHIBIT 4 Exhibit D EXHIBIT 4 CITY OF DENTON GENERAL CONDITIONS FOR BUILDING CONSTRUCTION ARTICLE 1 GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the Owner and the Contractor, these General Conditions and other supplementary conditions included by special provisions or addenda, drawings, specifications, addenda issued prior to execution of the Contract, other documents listed in the Contract, and Amendments issued after execution of the Contract. For purposes of these General Conditions, an Amendment is: (1) a written Supplemental Agreement to the Contract signed by authorized representatives of both parties; (2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or (3) a written order for a minor change in the Work issued by the Architect /Engineer as described in Paragraph 7.3. The Contract Documents also include bid documents such as the Owner's Instructions to Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents, and any other documents, exhibits or attachments specifically enumerated in the Building Construction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Contractor. b) THE CONTRACT The Contract Documents, as defined in Paragraph 1. 1, are expressly incorporated into and made a part of the formal Building Construction Services Agreement between the Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to collectively in these General Conditions as the "Contract "). The Contract Documents represent the entire and integrated agreement between the Owner and the Contractor and supersede all prior negotiations, representations or agreements, either written or oral. The terms and conditions of the Contract Documents may be changed only by an Amendment. The Contract Documents shall not be construed to create a contractual relationship of any kind: (1) between the Architect /Engineer and Contractor; (2) between the Owner and a Subcontractor or Sub - subcontractor; or (3) between any persons or entities other than the Owner and Contractor. EXHIBIT 4 The Architect /Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect /Engineer's duties. c) THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor, or any Subcontractors, Sub - subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work may constitute the whole or apart of the Project. d) THE PROJECT The Project is the total construction more particularly described in the Building Construction Services Agreement, of which the Work performed under the Contract Documents may be the whole or a part of the Project and which may include construction by the Owner or by separate contractors. All references in these General Conditions to or concerning the Work or the site of the Work will use the term "Project," notwithstanding that the Work may only be a part of the Project. e) THE DRAWINGS The Drawings (also known as the "Plans ") are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. f) THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, performance of related services, and other technical requirements. g) THE PROJECT MANUAL The Project Manual is the volume or volumes which contain the bidding requirements, sample forms, General Conditions for Building Construction, special provisions, and Specifications. The Project Manual may be modified by written addendums issued by the Owner during bidding, in which case the written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated by the Owner in writing. h) ALTERNATE An Alternate is a variation in the Work on which the Owner requires a price separate from the City Building General Conditions Base Proposal. If an Alternate is accepted by the Owner, the variation will become a part of the Contract through the execution of a change order or amendment to the Contract and the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner, and later deleted prior to any Work under the alternate being performed or materials delivered to the Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the Contractor's Bid. i) BASE Proposal The Base Proposal is the price quoted for the Work before Alternates are considered. j) HAZARDOUS SUBSTANCE The term Hazardous Substance is defined to include the following: EXHIBIT 4 (1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non- friable; (2) any polychlorinated biphenyls ( "PCBs "), or PCB - containing materials, or fluids; (3) radon; (4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; (5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its condition, concentration or area of release could have a significant effect on human health, the environment, or natural resources; (6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I) (including those defined by Section 9001 (1) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and (8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic substance as those or similar terms are defined under any federal, state, or local environmental laws, rules, or regulations. k) OTHER DEFINITIONS As used in the Contract Documents, the following additional terms have the following meanings: (1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials, appurtenances and other expenses to complete in place, ready for operation or use; (2) "shall" means the action of the party to which reference is being made is mandatory; (3) "as required" means as prescribed in the Contract Documents; and (4) "as necessary" means all action essential or needed to complete the work in accordance with the Contract Documents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. EXHIBIT 4 (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including subsurface conditions as described and identified in the Geotechnical Report, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. (d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. (e) Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. (f) The Drawings and Specifications are intended to agree with one another, and Work called for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both. Specifications shall govern materials, methods and quality of work. In the event of a conflict on the Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and large scale drawings shall govern over small scale drawings. Conflict between two or more dimensions applying to a common point shall be referred to the Architect /Engineer /Engineer for final adjustment. If discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work, or within or between other Contract Documents, the Contractor shall not perform such Work without having obtained a clarification from the Architect /Engineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or the Specifications disagree within themselves or with each other; the Base Bid will be based on the most expensive combination of quality and quantity of Work indicated. (g) Deviations from Contract Documents shall be made only after written approval is obtained from Architect /Engineer and Owner, as provided in Article 7. (h) The intention of the Contract Documents is to include all materials, labor, tools, equipment, utilities, appliances, accessories, services, transportation, and supervision required to completely perform the fabrication, erection and execution of the Work in its final position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; EXHIBIT 4 (3) addenda, with those addenda of later date having precedence over those of an earlier date; (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifications and Drawings. 1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect /Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. 1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are: (1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.10), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses; (3) the titles of other documents published or used by the Owner as manuals or official policy statements; or (4) proper nouns or other words required under standard grammatical rules to be capitalized. ARTICLE 2 THE OWNER 2.1 DEFINITION OF OWNER The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representatives. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER (a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish any environmental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. EXHIBIT 4 (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3. 10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including redeliveries by the Owner to comply with the current schedule. (d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies of the Drawings and Specifications for bid purposes and one hard copy approved by Building Inspections upon execution of the Contract. Contractor may obtain additional copies by paying the cost of additional printing or reproduction. (e) The obligations described above are in addition to other duties and responsibilities of the Owner enumerated in the Contract Documents and especially those in respect to Article 6 (Construction by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11 (Insurance and Bonds). (f) The Owner shall forward all instructions to the Contractor through the Architect /Engineer, except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as described in Paragraph 2.4. (g) The Owner's employees, agents, and consultants may be present at the Project site during performance of the Work to assist the Architect /Engineer in the performance of the Architect /Engineer's duties and to verify the Contractor's record of the number of workmen employed on the Work, their occupational classification, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within twenty (20) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect /Engineer's compensation for additional services and expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to verification (but not approval) by the Architect /Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner. EXHIBIT 4 2.5 NOTICE TO PROCEED After final execution of the Contract and receipt and approval of the required performance and payment bonds and evidence of required insurance, the Owner will issue a written notice to proceed with the Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason. ARTICLE 3 THE CONTRACTOR 3.1 DEFINITION OF CONTRACTOR The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Contractor shall carefully check, study, and compare the Contract Documents with each other and shall at once report to the Architect /Engineer in writing any inconsistency, ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Contractor will be held responsible for any known or reasonably discovered subsequent error, omission, conflict, or discrepancy which might have been avoided by the above - described check, study, comparison, and reporting. In the event the Contractor continues to work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists without obtaining such clarification or resolution or commences an item of the Work without giving written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check, study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the Contract Documents, without any increase to the Contract Sum or Contract Time. The Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or Contract Time. (b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth specific instructions concerning these matters. EXHIBIT 4 (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub - subcontractors, and their respective agents and employees, and any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work required throughout shall be of a quality that will bring only first class results. Mechanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect /Engineer in the Architect /Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any way eliminate the Architect /Engineer's responsibility to the Owner under the Architect /Engineer /Owner Agreement. (e) Any Contractor, Subcontractor, Sub - subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor, sub - subcontractor or separate contractor without the Contractor having given written notice to the Architect /Engineer of the existence of any known or reasonably discovered faulty surface or condition -in the surface that prevents achieving the quality of workmanship specified by the Contract Documents and without having obtained the prior approval of the Architect /Engineer and the Owner to proceed is deemed to have accepted the surface or condition in the surface as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre- approved by the Architect /Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time. (f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the Contractor. The Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Each Contractor for his own Work shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the Owner, establish and maintain adequate horizontal and vertical control. 3.4 LABOR AND MATERIALS (a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the Owner, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other EXHIBIT 4 facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. (b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the employment relates, to all labor hired for the Project in the following order: (1) to bona fide residents of the City of Denton, Texas; (2) to bona fide residents of the County of Denton, Texas; (3) to bona fide residents of the State of Texas; (4) to bona fide residents of the United States. 3.5 WARRANTY (a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good and workmanlike manner and that all materials and equipment furnished under the Contract will be of good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will otherwise conform to the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, will be considered defective or nonconforming. The Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the Architect /Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. THE GENERAL WARRANTY PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE- EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF THE LATENT DEFECT. (b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under the Contract Documents. 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to EXHIBIT 4 be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. 3.7 PERMITS, FEES AND NOTICES (a) The Architect /Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits, and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department. (b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of governmental entities or agencies applying to performance of the Work. (c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor shall promptly notify the Architect /Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or rules and regulations without notifying the Architect /Engineer and the Owner, the Contractor shall assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work and any other Work in place that may be adversely affected by the corrective work. 3.8 ALLOWANCES (a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for the amounts identified in the Contract and by persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities against which the Contractor makes reasonable objection. (b) Unless otherwise provided in the Contract Documents: (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment delivered at the site less all exempted taxes and applicable trade discounts; (3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance Work; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect: (i) the difference between actual costs and the allowances under Clause (b) (2); and EXHIBIT 4 (ii) changes in Contractor's costs under Clause (b) (3); (5) the Owner retains the right to review and approve Subcontractors selected by the Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Contractor replace its superintendent at any time and the Contractor will replace said superintendent at the Owner's direction. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the construction schedule for the Architect /Engineer's and Owner's information, review, and approval in accordance with the following provisions: (1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall provide for expeditious and practicable execution of the Work. (2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Contractor; and (ii) the latest date for approval by the Architect /Engineer. (3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor ") of all the major construction activities of the Work in a logical and sequential order (the "project network ") which requires completion prior to commencement of the task next following (the "successor "). Each task shall be identified with: (i) actual work time, exclusive of slack time, for accomplishment; (ii) the latest start date; (iii) the latest finish date; (iv) the amount of float associated with each task; (v) the amount of labor, material, and equipment associated with each task; and (vi) the percentage of completion as of the date of the current schedule. (4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. EXHIBIT 4 (5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect /Engineer and the Owner an up -to -date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist of a time scale drawing indicating actual progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect /Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect /Engineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the Architect /Engineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect /Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes EXHIBIT 4 and selections made during construction, and in addition shall maintain at the Project site approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect /Engineer and shall be delivered to the Architect /Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect /Engineer is subject to the limitations of Paragraph 4.2. (e) The Contractor shall review, approve and submit to the Architect /Engineer Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. (f) The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been approved by the Architect /Engineer. Work requiring this submittal and review shall be in accordance with approved submittals and any identified exceptions noted by the Architect /Engineer. (g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and related field construction criteria, or will do so, and has checked and coordinated the information contained within submittals with the requirements of the Work and of the Contract Documents. The Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions, deletions or omissions from requirements of the Contract Documents by the Architect /Engineer's approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Architect /Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at the time of submittal and the Architect /Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect /Engineer's approval thereof. Further, notwithstanding any approval of a submittal by the Architect /Engineer, the Contractor shall be responsible for all associated Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not specifically identified by the Contractor to the Architect /Engineer at EXHIBIT 4 the time of the above - mentioned submittals, including additional consulting fees, if any, in any and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to additional,revisions other than those requested by the Architect/Engineer on previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not requested. (j) Informational submittals upon which the Architect /Engineer is not expected to take responsive action may be so identified in the Contract Documents. (k) When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents, the Architect /Engineer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 3.13 USE OF THE PROJECT SITE The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project site with materials or equipment. 3.14 CUTTING AND PATCHING (a) The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. (c) A Hot Work Permit must be obtained from the City of Denton's Facilities Management Department, 869 S. Woodrow Lane, Denton, Texas (940 349 -7200) for any temporary operation involving open flames or producing heat and /or sparks. This includes, but is not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect /Engineer access to the Work in preparation and progress wherever located during the course of construction. EXHIBIT 4 3.17 TESTS AND INSPECTIONS (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental entity or agency, and the Contractor shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Architect /Engineer timely notice of when and where tests and inspections are to be made so the Architect /Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received. (b) If the Architect /Engineer, the Owner or other public authorities having jurisdiction over the Work determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 3.17(a), the Architect /Engineer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect /Engineer of when and where tests and inspections are to be made so that the Architect /Engineer may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c). (c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of repeated procedures and compensation for the Architect /Engineer's services and expenses, if any. The Contractor shall bear the costs of any subsequent testing, inspection, or approval of the corrected Work. (d) Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect /Engineer. (e) If the Architect /Engineer is to observe tests, inspections or approvals required by the Contract Documents, the Architect /Engineer will do so promptly and, where practicable, at the normal place of testing or inspection. (f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 3.18 ROYALTIES AND PATENTS The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT /ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT THE OWNER OR THE ARCHITECT /ENGINEER SPECIFIED A PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Contractor shall immediately notify the Owner and the Architect /Engineer of same. EXHIBIT 4 3.19 INDEMNIFICATION (a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT /ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB - SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE ARCHITECT /ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT /ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the Architect /Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety and health of workers. The Contractor specifically agrees to comply with the above - mentioned laws and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect /Engineer under the above - mentioned laws and regulations are secondary to those of the Contractor. EXHIBIT 4 ARTICLE 4 CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER) (a) The design professional is the person lawfully licensed to practice architecture or engineering or a firm or other business entity lawfully practicing architecture /engineering identified as such in the formal Building Construction Services Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect /Engineer" means the Architect /Engineer or the Architect /Engineer's authorized representative. The Owner may, at its option, designate a qualified Owner representative to serve as the Architect /Engineer on the Project instead of an outside firm or person. In such event, the references in these General Conditions that refer to the Architect /Engineer shall apply to the Owner- designated Architect /Engineer representative and the Owner- designated Architect /Engineer representative shall be accorded that same status by the Contractor. (b) In the event the Architect /Engineer is an outside person or firm and the Architect /Engineer's employment is terminated, the Owner may, at its option, contract with a new outside Architect /Engineer to replace the former, or may designate a qualified Owner representative to serve as the Architect /Engineer. The replacement Architect /Engineer, whether an Owner representative, an independent Architect /Engineer or any other qualified person or entity, shall be regarded as the Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled by the Owner, whose decision shall be final and binding. (c) Owner reserves the right to appoint a representative empowered to act for the Owner during the Construction Phase and to supersede the Architect /Engineer's Construction Phase responsibility. Owner shall notify the Architect /Engineer and Contractor in writing at least 10 days in advance, if electing to appoint a representative empowered to act for the Owner during the Construction Phase. Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the Architect /Engineer, with the Owner notifying the Contractor of any such changes. The Architect /Engineer shall not be construed as a third party beneficiary to the Contract and can in no way object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have control over charge of, or be responsible for, construction means, methods, techniques, sequences, or procedures, or for safety precautions or programs in connection with the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.2 ARCHITECT /ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION (a) The Architect /Engineer will administer the Contract as described in the Contract Documents and in accordance with the terms of the Architect /Engineer's agreement with the Owner, where applicable, subject to the direction and approval of the Owner. If requested by the Contractor, the provisions of the Owner /Architect /Engineer Agreement will be made available to the Contractor. (b) The Architect /Engineer shall provide, during performance of the Work, adequate and competent periodic on -site construction observation, periodically visiting the Project site to the extent EXHIBIT 4 necessary to personally familiarize themselves with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. The Architect /Engineer shall not, however, be required to make continuous on -site inspections to check the Work. Field reports of each visit shall be prepared by the Architect /Engineer and submitted to the Owner. The Architect /Engineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the Work. The Architect /Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect /Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect /Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect /Engineer and the Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub - subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Architect /Engineer. Communications by and with the Architect/Engineer's consultants shall be through the Architect /Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made directly with the Owner and provide copies of such confirmation to the Architect /Engineer. (e) Based on the Architect /Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect /Engineer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. (f) The Architect /Engineer and the Owner will each have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect /Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect /Engineer will have authority to require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect /Engineer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of the Architect /Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. (g) The Architect /Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect /Engineer's action will be taken with such EXHIBIT 4 reasonable promptness as to not delay the Work or the activities of the Owner, Contractor, or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect /Engineer's review of the Contractor's submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect /Engineer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated in writing by the Architect /Engineer, of any construction means, methods, techniques, sequences, or procedures. The Architect /Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The Architect /Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3. (i) The Architect /Engineer will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. (j) If the Owner and Architect /Engineer agree, the Architect /Engineer will provide one or more Project representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties, responsibilities, and limitations of authority of such Project representatives shall be as set forth in an exhibit to be incorporated into the Contract Documents. (k) The Architect /Engineer will interpret and make recommendations to the Owner concerning performance under and requirements of the Contract Documents upon written request of either the Owner or Contractor. The Architect /Engineer's response to such requests will be made with reasonable promptness and within any time limits agreed upon. The Architect /Engineer shall secure the Owner's written approval before issuing instructions, interpretations, or judgments to the Contractor which change the scope of the Work or which modify or change the terms and conditions of any of the Contract Documents. (1) Interpretations and decisions of the Architect /Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect /Engineer will endeavor to secure faithful performance by the Contractor. (m)The Architect /Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents provided that the Architect /Engineer has prior written approval of the Owner. 4.3 CLAIMS AND DISPUTES (a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a "Claim" means a demand or assertion by one of the parties to the Contract seeking an adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the scope of the Contract EXHIBIT 4 Documents. The responsibility to substantiate the Claim and the burden of demonstrating compliance with this provision shall rest with the party making the Claim. Except where otherwise provided in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT /ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, shall be signed and sworn to by an authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect /Engineer. Claims, disputes, and other matters in question between the Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the Contract Documents shall be referred to the Architect /Engineer for recommendation to the Owner, which recommendation the Architect /Engineer will furnish in writing within a reasonable time, provided proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim to the Architect /Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the Claim. (c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and (5) the Owner and the Architect /Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. EXHIBIT 4 (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT /ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT /ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS. (f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect /Engineer a sufficient amount of time, without adversely affecting the construction schedule, to review the request, prepare and distribute such additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a Change Order for the required work if the Contractor believes that additional cost is involved for reasons including but not limited to: (1) a written interpretation from the Architect/Engineer; (2) a written order for a minor change in the Work issued by the Architect/Engineer; (3) failure of payment by the Owner; (4) termination of the Contract by the Owner; (5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or property because of an act or omission of the Owner, or of any of the Owner's officers, employees or agents, written, sworn -to notice of any claim for damages or injury shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail to enable the Architect /Engineer and the Owner to investigate the matter. (h) Subcontractor Pass - Through Claims. In the event that any Subcontractor of the Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be subject to: (1) the requirements of Paragraph 4.3 of these General Conditions; and (2) the following additional three requirements listed below, all three of which additional requirements shall be conditions precedent to the entitlement of the Contractor to seek and assert such claim against the Owner: EXHIBIT 4 (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identified in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by the Subcontractor shall be included by Contractor in the claim submittal materials. (3) Any failure of the Contractor to comply with any of the foregoing requirements and conditions precedent with regard to any such claim shall constitute a waiver of any entitlement to submit or pursue such claim. (4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial Completion of the Work by or before the Scheduled Completion Date is of substantial importance to Owner. The following provisions, therefore, will apply: (1) If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Contractor to develop a recovery schedule as described in Paragraph 3.10 or to accelerate its progress in such a manner as to achieve Substantial Completion on or before the Contract Time completion date or such other date as the Owner may reasonably direct and, upon'receipt, the Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Contractor is otherwise entitled to an extension of Contract Time and has properly initiated a Claim for a time extension in accordance with Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner's sole discretion, to deny all, or any part, of the Claim for extension of Contract Time by giving written notice to the EXHIBIT 4 Contractor provided within fourteen (14) days after receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date. (3) If the Contractor would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by the Owner if not for the need and right to accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by the Contractor and approved in writing by the Owner. A percentage markup for the prorated cost of premium on the existing performance and payment bonds and required insurance, not to exceed 5 %, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from: (1) claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled; (2) defective or nonconforming Work appearing after Substantial Completion; (3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or (4) the terms of general and special warranties required by the Contract Documents or allowed or implied by law. (k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING. (1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER'S GOVERNMENTAL IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE LAW. EXHIBIT 4 ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease for use in performance of or incorporation into the Work. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. (b) A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Subcontractor or another Sub - subcontractor by purchase or lease for use in performance of or incorporation into the Work. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK. WITH REGARDS TO MWBE, THE CITY OF DENTON ONLY REQUIRE A GOOD FAITH EFFORT, THERE IS NO PERCENTAGE REQUIREMENT. (a) Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the Architect /Engineer in writing, for acceptance by the Owner and the Architect /Engineer, a list of the names, addresses, telephone numbers, M /WBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect /Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect /Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect /Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect /Engineer has made reasonable and timely objection. (c) Architect /Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect /Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect /Engineer makes reasonable objection to such change. EXHIBIT 4 5.3 SUBCONTRACTUAL RELATIONS (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner and the Architect /Engineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect /Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect /Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions of such Documents available to their respective proposed Sub - subcontractors. (b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report") with each Application and Certificate for Payment, along with partial waivers of liens for all Work included in the application for payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. Pay applications will not be reviewed or certified by the Architect to the Owner without accompanying partial lien waivers after the first Certificate for payment. With each Application for Payment, the Contractor shall certify that there are no mechanics' or materialmen's Liens outstanding at the date of the Application for Pyament, and that all bills due with respect to the Work have been paid to date, and that there is no known basis for filing of any liens against the Surety or the Owner in connection with the Work. Upon completion by the Contractor of the construction of the project, but prior to. final payment to the Contractor, the Contractor shall deliver to the Owner conditional releases of all liens, which shall identify the remaining sums to be paid pending receipt of final payment. The conditional releases of liens, upon final payment by the Owner, shall rlease the Owner of all liens, and of all rights to claim any lien, from all manufacturers, material -men, and subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Ower is released from all such claims. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. Provided that the Owner has been notified by written correspondence (a lien notice) from any manufacturer, material -men, or subcontractor furnishing services or materials for the project that an outstanding debt is owed, the Owner shall ensure that the Contractor is notified of such notice within ten (10) days of receipt of such notice. The Contractor shall ensure that resolution has EXHIBIT 4 been achieved for each written notice filed with the Owner, and provide sufficient written documentation to the Owner that payment has been rendered, or a resolution has been achieved that is satisfactory to the Owner. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment received or other information furnished to the Owner that: (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCHITECT /ENGINEER'S ENFORCEMENT OF THIS SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT /ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals and copies of the subcontract documents. In the event assignment is not requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same and to the extent that they relate to the performance of Work terminated by the notice of termination. ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS (a) The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Project site under Conditions of the Contract identical or substantially similar to these General Conditions, including those portions related to EXHIBIT 4 insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with the Contract Documents. (b) When separate contracts are awarded for different portions of the Project or other construction or operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Building Construction Services Agreement with the Owner. (c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's Change Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. (d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under these General Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY (a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and storage of their materials and equipment and the performance of their activities and shall coordinate the Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect /Engineer apparent discrepancies or defects in the other construction that would render it unsuitable for proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault or negligence of a separate contractor or through failure of a separate contractor to carry out the directions of the Owner or the Architect /Engineer. Should any interference occur between the Contractor and a separate contractor, the Architect /Engineer or the Owner may furnish the Contractor with written instructions designating priority of effort or change in methods, whereupon the Contractor shall immediately comply with such direction. In such event, the Contractor shall be entitled to an extension of the Contract Time only for unavoidable delays EXHIBIT 4 verified by the Architect /Engineer; no increase in the Contract Sum, however, shall be due to the Contractor. (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred. (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the Project site and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as the Architect /Engineer recommends to be just. ARTICLE 7 AMENDMENTS 7.1 CHANGE ORDERS (a) A Change Order is a written order to the Contractor, signed by the Owner and the Architect /Engineer, issued after execution of the Contract, authorizing a change in the Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent with other applicable provisions of this Contract. The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties, may order changes to the scope of Work under the Contract by additions, deletions, or other revisions, the Contract Sum and Contract Time to be adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the Owner's City Attorney. (b) In addition to the Owner and the Architect /Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however, should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect /Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The EXHIBIT 4 Contractor forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative impact of all Change Orders and to any claim related to the effect of a change on other Work. (c) No extra work (except under emergency conditions) or changes shall be made nor shall any substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings and Specifications be made unless pursuant to a written Change Order signed by the Owner and the Architect /Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra work or any substitution, change, addition, omission or deviation from the requirements of the Drawings or Specifications unless the same shall have been authorized in writing by the Owner and the Architect/Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders under emergency conditions. (d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following: (1) mutual acceptance of a guaranteed maximum price amount properly itemized and supported by sufficient substantiating data to permit evaluation; (2) unit prices stated in the Contract Documents or subsequently agreed upon; (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the force account method provided in Subparagraph 7.1(e) (e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15 %. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect /Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect /Engineer each day during the performance of force account work, with copies to the Owner. FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; EXHIBIT 4 (2) costs of materials, supplies and equipment (but not to include off -site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect /Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect /Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect /Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. 7.4 TIME REQUIRED TO PROCESS AMENDMENTS (a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in advance of the required work to allow the Owner and the Architect /Engineer a minimum of thirty (30) calendar days after receipt by the Architect /Engineer to review the itemized EXHIBIT 4 breakdown and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other grounds for seeking extra compensation under the Contract Documents, without reservation or further recourse. (b) All Amendments require approval by either the City Council or, where authorized by the state law and City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a minimum of forty -five (45) calendar days after submission to the Owner in final form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with the work under a pending Amendment only if directed in writing by the Owner. ARTICLE 8 CONTRACT TIME 8.1 DEFINITIONS (a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. (b) The date of commencement of the Work is the date established in the notice to proceed from the Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of persons or entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. (c) The date of Substantial Completion is the date certified by the Architect /Engineer in accordance with Paragraph 9.7. (d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at 12:00 midnight, unless otherwise specifically defined by special provision. 8.2 PROGRESS AND COMPLETION (a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Building Construction Services Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing, prematurely commence operations on the Project site or elsewhere prior to the effective date of insurance to be furnished by the Contractor as required by Article 11. The date of commencement of the Work shall not be changed by the effective date of insurance required by Article 11. EXHIBIT 4 (c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the Building Construction Services Agreement, or in any proper extension of the Contract Time granted by the Owner, then the Contractor agrees, as a part of the consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated damages (hereinafter called the "Stipulated Amount ") as stipulated in the Bid Proposal form and the Building Construction Services Agreement for each calendar day that the Contractor has not Substantially Completed the Work after the expiration of the Contract Time provided. The Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient to recover the Stipulated Amount, then the Contractor or the Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in excess of the funds remaining unpaid in the Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially Completed within the calendar days allotted, which shall include the original Contract Time and any proper extension of the Contract Time granted in writing by the Owner. Should the Contractor dispute the Owner's determination of liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns, institute any legal action against the Owner to enforce rights under the Contract Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking full recovery for any and all actual damages suffered by the Owner and attributable to the Contractor, as an alternative to all liquidated damages due. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Architect /Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect /Engineer and Owner may determine. (b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3. (c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR EXHIBIT 4 FAULT OF THE OWNER, THE ARCHITECT /ENGINEER, OR THE OWNER'S REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY. (d) The Owner shall have the right to occupy, without prejudice to the right of either party, any completed or largely completed portions of the structure or Work, notwithstanding the fact that the Contract Time for completing all or a portion of the Work may not have expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken or used. (e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being suspended by a court order. (f) The Architect /Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect /Engineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent damage or deterioration of the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor shall not suspend the Work in whole or in part without written authority from the Architect /Engineer or the Owner, and shall resume the Work promptly when notified by the Architect /Engineer or the Owner to resume operations. (g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect /Engineer, Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM The Contract Sum is stated in the Building Construction Services Agreement and, including authorized adjustments, is the total amount of compensation payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Contractor shall submit to the Architect /Engineer a schedule of values allocated to various portions of the Work, prepared in such form and supported EXHIBIT 4 by such data to substantiate its accuracy as the Architect /Engineer may require. This schedule, when approved by the Architect /Engineer and the Owner, shall be used as a basis for the Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment), as approved by the Owner. 9.3 APPLICATIONS FOR PAYMENT (a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect /Engineer an itemized Application for Payment for Work completed in accordance with the schedule of values. The Application shall be notarized, if required, and supported by data substantiating the Contractor's right to payment as the Owner or Architect /Engineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off -site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off -site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. EXHIBIT 4 (e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an "early delivery." All early delivery materials or equipment must have the express written permission- of the Owner to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off -site until required at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved for payment as stored materials prior to thirty (30) days before the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in writing by the Owner. (f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect /Engineer will, within ten (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect /Engineer determines is properly due, or notify the Contractor and Owner in writing of the Architect /Engineer's reasons for withholding certification in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certificate for Payment will constitute a representation by the Architect /Engineer to the Owner, based on the Architect /Engineer's observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect /Engineer's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to Final Completion and to specific qualifications expressed by the Architect /Engineer. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate for Payment is not a representation that the Architect /Engineer has: (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; EXHIBIT 4 (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect /Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) This section has been modified per mutual agreement of the parties. The following process will meet the requirements of Texas Government Code 2253: 1. The Contractor has agreed to invoice the Owner upon completion and acceptance of the project, with net 30 terms. 2. Prior to final acceptance of the project by the Owner, the Contractor shall have rectified any and all issue regarding compliance with the City of Denton's Building Codes and Fire Codes. 3. The Contractor shall provide notice of project completion to all parties, materialmen, sub- contractors, bonding entities, etc. in accordance with the provisions of Texas Government Code 2253 (McGregor Act). 4. The Owner will submit and apply for a Certificate of Occupancy. The Contractor agrees to assist the Owner with providing necessary support to obtain a Certificate of Occupancy for the buildings. 5. Contractor may submit the invoice to Owner for one -half (1/2) of the project cost, and shall be paid within 15 days of invoice submission. 6. Prior to final payment, Contractor shall provide to the Owner, evidence of all lien releases to the City of Denton. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect /Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect /Engineer's or Owner's opinion the representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect /Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect /Engineer or the Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and Architect /Engineer or the Owner cannot agree on a revised amount, the Architect /Engineer will EXHIBIT 4 promptly issue a Certificate for Payment for the amount for which the Architect /Engineer is able to make the required representations to the Owner. The Architect /Engineer or the Owner may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary, in the Architect /Engineer's or Owner's opinion, to protect the Owner from loss because of: (1) defective or nonconforming Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; (7) persistent failure to carry out the Work in accordance with the Contract Documents; or (8) mathematical or other errors that are discovered in the Application for Payment. (b) When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payment or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect /Engineer has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect /Engineer. The Owner shall not be liable for interest on any late or delayed progress payment or final payment caused by any claim or dispute, any discrepancy in quantities, any failure to provide supporting documentation or other information required with the Application for Payment or as a precondition to payment under the Contract Documents, or due to any payment the Owner or the Architect /Engineer has a right to withhold or not certify under the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including, without limitation, the final Certificate for Payment) for any default under the Contract Documents, including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Contractor default remains uncured. EXHIBIT 4 (b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in similar manner. (c) The Architect /Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect /Engineer and the Owner on account of portions of the Work done by such Subcontractor. (d) Neither the Owner nor the Architect /Engineer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3. (e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d). (f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certified by the Architect /Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Architect /Engineer a comprehensive list of remaining items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list "). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect /Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substantially Complete. If the Architect /Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the Contract Documents and which renders the Work inspected not Substantially Complete the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct the item upon notification by the Architect /Engineer. The Contractor shall then submit a request for another inspection by the Architect /Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect /Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish EXHIBIT 4 responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect /Engineer, the Owner shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect /Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect /Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. (c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.9 FINAL COMPLETION AND FINAL PAYMENT (a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect /Engineer, accompanied by the Owner's representative, will promptly make final inspection and, when the Architect /Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the Architect /Engineer will promptly issue a final Certificate for Payment stating that to the best of the Architect /Engineer's knowledge, information and belief, and on the basis of the Architect /Engineer's observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect /Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final payment within thirty (30) days after EXHIBIT 4 Owner's receipt and approval of the final Certificate for Payment. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect /Engineer: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) a consent of surety to final payment; and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. (c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to him for the Work under this Contract. In the event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit the amount owed and the name of each subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. (d) If, after Substantial Completion of the Work, final completion of the Work is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion and the Architect /Engineer confirms the delay, the Owner shall, upon application by the Contractor and certification by the Architect /Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect /Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. EXHIBIT 4 ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. (b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. (e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre- approve the use of any explosives on the Project; the Contractor shall not assume in its bid that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect /Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, EXHIBIT 4 REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT /ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect /Engineer with evidence of insurance sufficient to cover possible damage or injury, which insurance shall either include the Owner and the Architect /Engineer as additional insureds or be sufficiently broad in coverage as to fully protect the Owner and the Architect /Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places shall be marked clearly "DANGEROUS- EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton Fire Department regulations. The Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity of the Project Site of the Contractor's intention to use explosives, and such notice shall be given sufficiently in advance to enable the telecommunications and public utility companies and private property owners to take such steps as they may deem necessary to protect their property from injury. The notice shall not relieve the Contractor of any responsibility for damage resulting from any blasting operations. (f) The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions of the Owner or Architect /Engineer or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by property insurance or other insurance required by the Contract Documents, the Owner and the Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for such damage or loss. (g) The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect /Engineer. (h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety. 10.3 EMERGENCIES In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury, or loss. Additional EXHIBIT 4 compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Contractor shall place materials stored about the Work and shall conduct the Work at all times in a manner that causes no greater obstruction to the public than is considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special permission of the Owner. The materials excavated and the construction materials or plant used in the performance of the Work shall be placed in a manner that does not endanger the Work or prevent free access to all fire hydrants, water mains and appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity. (b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to public convenience and safety which may come to the Owner's attention, after twenty -four (24) hours notice in writing to the Contractor. In case of an emergency, the Owner shall have the right to immediately remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case of major thoroughfares or street upon which transit lines operate, be forty -eight (48) hours in advance. The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor shall, when directed by the Architect /Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor's responsibility for accidents shall include the roadway approaches as well as the crossing structures. 10.5 BARRICADES, LIGHTS AND WATCHMEN If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect /Engineer may order the damaged portion immediately removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted by the Owner. EXHIBIT 4 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect /Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect /Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical connections with the Owner or with Denton Municipal Electric in the event that separately metered electrical connections are required for the Project. The Contractor shall pay 'for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly authorized to do so by the Denton Water Utilities Department in accordance with the Denton City Code. EXHIBIT 4 10.10 ENVIRONMENTAL COMPLIANCE (a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable federal, state or local laws, rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. (b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter to the Architect /Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors, the Contractor shall be responsible for remediating the condition at the sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner and the Architect /Engineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. (d) Spill Prevention Plan. At least seventy -two (72) hours prior to commencing performance of any of the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and regulations. The SPRP shall be specially designed for the Contractor's planned work methods and procedures. The SPRP shall be designed to EXHIBIT 4 complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty -four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect /Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. (f) The Contractor shall deposit surplus or waste excavation or other materials removed as part of the Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to removal of any excavation or other material from the Project site. A copy of all transport manifests for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request to the Architect /Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. EXHIBIT 4 (g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to the Clean Water Act; 33 U.S.C.A. § §1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos - related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable. (i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days advance written notice from the Owner to comply with the provisions of this Paragraph 10. 10, the terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other environmental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: (1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed plan to achieve compliance within a reasonably prompt period of time is prepared by the Contractor and approved by the Owner; (2) if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor for the cost of the remediation or correction; or (3) terminate the Contract for cause as provided in Article 13, ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.2 PROPERTY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements.. 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS EXHIBIT 4 Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -of- Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: (1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and faithful execution of the Work and performance of the Contract in accordance with Plans, Specifications and all other Contract Documents, including any Amendments thereof, for the protection of the Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner- accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. EXHIBIT 4 (d) The person or persons, partnership, company, firm, Limited Liability Company, association, corporation, or other business entity to whom the Contract is awarded shall, within ten (10) days after such award, sign the required Contract with the Owner and provide the necessary surety bonds and evidence of insurance as required under the Contract Documents. No Contract shall be binding on the Owner until it has been approved as to form by the City Attorney, executed for the Owner by the City Manager, the performance and payment bonds and evidence of insurance have been furnished as required by the Contract Documents, and the fully executed contract has been delivered to the Contractor. (e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or as soon thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid proposal and the Owner may rescind the Contract award and collect or retain the proceeds of the bid security. By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re- advertise for bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re- advertisement shall be the bid referred to in this Paragraph. ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK 12.1 UNCOVERING OF WORK (a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to requirements specifically expressed in the Contract Documents, the Work must, if required in writing by the Architect /Engineer, be uncovered for the Architect /Engineer's observation and be replaced at the Contractor's expense without change in the Contract Time. (b) If a portion of the Work has been covered which the Architect /Engineer has not specifically requested to observe prior to it being covered, the Architect /Engineer may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK (a) The Contractor shall promptly correct Work rejected by the Architect /Engineer as failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect /Engineer's services and expenses made necessary thereby. EXHIBIT 4 (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Architect /Engineer or the Owner to do so unless the Owner has previously given the Contractor a written acceptance or waiver of the defect or nonconformity. The Contractor's obligation to correct defective or nonconforming Work remains in effect for: (1) one year after the date of Substantial Completion of the Work or designated portion of the Work; (2) one year after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.8(a); or (3) the stipulated duration of any applicable special warranty required by the Contract Documents. (c) The one -year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions of the Work performed, repaired, or corrected after Substantial Completion by the period of time between Substantial Completion and the actual completion of the Work. (d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work and termination of this Contract. The Owner shall give notice to the Contractor promptly after discovery of a defective or nonconforming condition in the Work. The one -year period stated in Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct latent defects or nonconformities in the Work, which defects or nonconformities could not have been discovered through reasonable diligence by the Owner or the Architect /Engineer at the time the Work was performed or at the time of inspection for certification of Substantial Completion or Final Completion. The one year period also does not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the one year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. (f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the Architect /Engineer, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work within a reasonable time fixed by written notice from the Architect /Engineer, the Owner may remove or replace the defective or nonconforming Work and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and equipment at auction or at private sale and shall account for the proceeds after deducting costs and damages that should have been borne by the Contractor, including compensation for the Architect /Engineer's services and expenses made necessary as a result of the sale. If the proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the deficiency, the Contractor shall pay the difference to the Owner. EXHIBIT 4 (g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or separate contractors, whether the construction is completed or partially completed, that is caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. (i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article 12 to the same extent as Work originally performed or installed. 12.3 ACCEPTANCE OF NONCONFORMING WORK The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with the requirements of the Contract Documents instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether or not final payment has been made. ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION 13.1 FINAL COMPLETION OF CONTRACT The Contract will be considered completed, except as provided in any warranty or maintenance stipulations, bond, or by law, when all the Work has been finally completed, the final inspection is made by the Architect /Engineer, and final acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to the expiration of the specified warranty period provided for in the Contract Documents, the Architect /Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect /Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect /Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: EXHIBIT 4 (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (2) A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Contractor has abandoned the Work. (5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work. (6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract Documents or to comply with any written orders given by the Architect /Engineer or the Owner as provided for in the Contract Documents. (7) Failure or refusal of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature, the correction of which has been directed in writing by the Architect /Engineer. (8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on the Owner in connection with the construction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within twenty (20) days after the written notice of termination for cause has been served upon the Contractor and the surety or its authorized agents, assume the obligations of the Contractor for the Work or that portion of the Work which the Owner has ordered the Contractor to discontinue and may: (1) perform the Work with forces employed by the surety; (2) with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or (3) with the written consent of the Owner, tender and pay to the Owner in settlement the amount of money necessary to finish the balance of uncompleted Work under the Contract, correct existing defective or nonconforming Work, and compensate the Owner for any other loss sustained as a result of Contractor's default. EXHIBIT 4 In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Contractor's place in all respects, and the amount of funds remaining unpaid under the Contract shall be paid by the Owner for all Work performed by the surety or the replacement contractor in accordance with the terms of the Contract Documents, subject to any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the termination shall become due and payable to the surety as the Work progresses, subject to all of the terms, covenants, and conditions of the Contract Documents. If the surety does not, within the time specified in Subparagraph 13.3(b), exercise its obligation to assume the obligations of the Contract, or that portion of the Contract which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Contractor agrees that the Owner shall have the right to take possession of or use any or all of the materials, plant, tools, equipment, supplies, and property of every kind provided by the Contractor for the purpose of the Work, and to procure other tools, equipment, labor, and materials for the completion of the Work, and to charge to the account of the Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred by the Owner to complete the Work shall be deducted by the Owner out of the balance of the Contract Sum remaining unpaid to or unearned by the Contractor. The Contractor and the surety shall be liable to the Owner for any costs incurred in excess of the balance of the Contract Sum for the completion and correction of the Work, and for any other costs, damages, expenses (including but not limited to additional fees of the Architect /Engineer and attorney's fees), and liquidated or actual damages incurred as a result of the termination. (d) The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner. (e) The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination for convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for convenience to the Contractor. Upon the Contractor's receipt of such written notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Contractor EXHIBIT 4 shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the Contractor for lost or anticipated profits. 13.4 TEMPORARY SUSPENSION OF THE WORK (a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon written notice to the Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or (4) other unforeseen conditions or circumstances. (b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Documents in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly made by the Contractor under Subparagraph 4.3 of these General Conditions: (1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the temporary suspension as determined by the Architect /Engineer and the Owner; (2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable costs of properly protecting any Work that is finished or partially finished during the period of the temporary suspension (no profit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the Project site and then return it to the Project site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment shall be due if the equipment is moved to another Project site of the Owner. EXHIBIT 4 ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain legally responsible for all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 14.3 WRITTEN NOTICE Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. EXHIBIT 4 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees. 14.9 NONDISCRIMINATION As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. The Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. § §12101- 12213, as amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. EXHIBIT 4 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a minimum of five (5) years following completion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise b�etwce�n the 1'O FP document, supplier (crin:s drawings, s ecilucations. construction document or contract; the terms and conditions set forth in the City of Denton General Conditions and the negotiated contract shall prevail. EXHIBIT 4 Exhibit E City of Denton Special Terms and Conditions EXHIBIT 4 ADDITIONAL TERMS AND CONDITIONS Contract Term It is the intention of the City of Denton to award a contract for construction of the project as described in the drawings and specifications. Materials and services undertaken pursuant to this RFP will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The services shall be accomplished per the Scope of Work as identified in Section III, the Procurement Process and Procedures as outlined in Section II, and shall conform to the requirements contained in the Technical Specification in Exhibit 2, and Technical Drawings in Exhibit 3. The Contract shall commence upon the issuance of a Notice to Proceed by the City of Denton and shall automatically expire upon completion of the work and acceptance by the City of Denton. Pricing Only firm, lump sum pricing with no escalation will be accepted for this project. Price Adjustments Price adjustments will not be allowed for this project unless a change in scope is approved that increases or decreases the amount of work required. Requests or proposals for changes in scope must be submitted in writing with documentation that provides justification for the change and supporting evidence that describes the basis for the cost change. Upon receipt of such request, the City of Denton reserves the right to either: accept the proposed change as competitive with the general market price at the time and issue appropriate authorizations or reject the increases within 30 calendar days after receipt of a properly submitted request. No work shall be undertaken on a proposed change until authorized by the City of Denton in the form of a Purchase Order change and /or other documentation appropriate to amending the contract. The request can be sent by e -mail to: purchasingkcityofdenton.com Or mail to: Or call: City of Denton City of Denton Purchasing Attn: Purchasing Manager (940) 349 -7100 RFP # 4811 901B Texas Street Denton, Texas 76209 The City of Denton reserves the right to accept, reject, or negotiate any proposed price changes. Quantities The quantities indicated on the drawings and in the Technical Specification are believed to be accurate but shall be considered only as estimates. The project requires complete and functional construction of the substation perimeter fence in accordance with the dimensions presented on the project documents. Differences between the quantities of material required and the estimated quantities will not be considered as basis for a change in the price for the project. In submitting a proposal, the proposer is stating that he has reviewed the project drawings and specifications and understands their intent and has checked the quantities and dimension and is asserting that the proposal is intended to account for all conditions and quantities to complete the project as described in the plans and specification. EXHIBIT 4 Substitutions Substitutions are not permitted without the written approval of the City of Denton Purchasing Department. For substitutions prior to the proposal deadline, this will be accomplished with a submittal to the Architect /Engineer, and approval by the City representative, and issuance of a written addendum. For substitutions after contract award, this will be accomplished with a submittal request to the Architect /Engineer, and approval by the City representative, and issuance of a written contract change order. Product Changes Durin Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to the Project Manager with the RFP number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be rejected and must be removed from the site at the supplier's expense. Products that have been installed shall be replaced at the supplier's expense. Patent Rights The contractor agrees to indemnify and hold harmless the City from any claim involving patent right infringement or copyrights on goods supplied. Asbestos Free Materials The contractor shall provide asbestos -free materials as represented by the Manufacturer's "Materials Safety Data Sheets" Rights to Data Documents and Computer Software Government Entity Ownershi Any software, research, reports studies, data, photographs, negatives or other documents, drawings or materials prepared by contractor in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be delivered to the City by the contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of contractor's obligations under this contract without the prior written consent of the City; provided, however, that contractor shall be allowed to use non - confidential materials for writing samples in pursuit of the work. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. Adding New Products or Services to the Contract after Award Following the Contract award, ADDITIONAL services of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to successful Contractor to provide a proposal on the additional services and shall submit proposal to the City as instructed. All submitted prices are subject to negotiation in accordance with Texas Government Code 2254. The City may accept or reject the proposal, and may issue a separate RFQ for the services requested, after rejecting some, or all, of the proposal. The services covered under this provision shall conform to the statement of work, specifications, and requirements as outlined in the request. Contract changes shall be made in accordance with Local Government Code 252.048. EXHIBIT 4 Samples Respondents must make samples available in accordance with the specification and upon request by the City of Denton prior to award with no costs to the City. Venue This agreement shall be governed by the law of the State of Texas and venue for its construction and enforcement shall lie in the courts of Denton County, Texas. Silence of S ecifications The apparent silence of these specifications as to any detail or the apparent omission from it of a detailed description concerning any point, shall be regarded as a meaning that the only best commercial practices are to prevail. All interpretations of these specifications shall be made on the basis of this statement. Prevailing Wage Rates In accordance with Texas Government Code 2258, the awarded contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). Notwithstanding any other provision of this Contract, the awarded contractor hereby represents and warrants that the contractor shall pay to each of its employees a wage not less than what is currently known as the "Federal Minimum Wage" and any increase or amendments thereto. Furthermore, contractor shall produce proof of compliance with this provision by contractor to the City. The City shall withhold payments due to contractor until contractor has complied with this provision. Prior to any payment being made for work satisfactorily completed and accepted, contractor shall submit wage rate affidavits with its billing documents affirming that all employees have been paid not less than the current "Federal Minimum Wage ". Special Permitting Requirements The awarded contractor shall work with identified City staff to obtain the necessary permits for construction of the project. Contracts and Bonds Successful awarded contractor will be required to sign original contract and submit a performance and payment bonds for 100 percent of the total proposal submitted before work is to commence. The contractor shall assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as amended. The City shall normally return the proposal bonds within ten (10) working days after the proposal due date, except for the three top ranked firms. The three top ranked firms will be retained by the City until the required contract and bonds have been executed, after which they shall be returned. EXHIBIT 4 SPECIAL CONDITIONS FOR GRANT FUNDED PURCHASES DAVIS BACON COMPLIANCE REQUIREMENTS The Contractor shall comply with the requirements of the Davis -Bacon Wage Act and the Wage Rate Requirements under Section 1606 of the Recovery and Reinvestment Act (the Act) and shall indemnify the City from liability for any failure to pay wages in compliance with the Act. The contractor shall ensure that all laborers and mechanics employed in the performance of the project for which the assistance is provided, including those employed by subcontractors, are paid wages at rates not less than those prevailing on similar work in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the `Davis - Bacon Act'). The bidder who is awarded the Contract shall pay the wage rate in effect as of the date the Contract is awarded. The Contractor shall cooperate with the City by providing information in the form and frequency requested by the City concerning the type of work performed, the number of hours worked, and the hourly rates paid for the various types of work performed by all workers on the Project. The Contractor shall allow City staff to conduct on -site wage interviews and shall post information concerning the Act as requested by the City. All contractors and subcontractors must comply with Davis -Bacon Wage Rates and the Wage Rate Requirements of Section 1606 of the Recovery and Reinvestment Act. The Wa a Rate Requirements, as stated in the Recovery and Reinvestment Act Grant are as follows: THIS AWARD TERM IS APPLICABLE TO ARRA AWARDS WHEN WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF 1'lhE RECOVERY ACT TERM IS APPLICABLE. 77115 %4 IYA RD TERM IS ALSO APPLICABLE TO SUBG1CAN:T!; A .ND 'OJ' TRACT V. Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award from DOE and is financially accountable for the use of any DOE funds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition. — "Site of the work" — (1) Means- - (i) The primary site of the work. The physical place or places where the construction called for in the award will remain when work on it is completed; and (ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is— (A) Located in the United States; and (B) Established specifically for the performance of the award or project; EXHIBIT 4 (2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided- (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; (3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such permanent, previously established facilities are not a part of the "site of the work" even if the operations for a period of time may be dedicated exclusively or nearly so, to the performance of a award. (b) (1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was performed at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work. (2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section l (b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. (4) The wage determination (including any additional classifications and wage rates conformed EXHIBIT 4 under paragraph (c) of this article) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the award shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefore only when all the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination. (ii) The classification is utilized in the area by the construction industry. (iii)The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 20210 The Administrator or an authorized representative will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. EXHIBIT 4 (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Rates of Wages The minimum wages to be paid laborers and mechanics under this award involved in performance of work at the project site, as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the pertinent locality, are included as an attachment to this award. These wage rates are minimum rates and are not intended to represent the actual wage rates that the Contractor may have to pay. Payrolls and Basic Records (a) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and last 4 digits of the social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b) (2) (B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found, under paragraph (d) of the article entitled Davis -Bacon Act, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section l(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (b) (1) The Contractor shall submit weekly for each week in which any award work is performed a copy of all payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph (a) of this article. This information may be submitted in any form desired. Optional Form WH -347 (Federal Stock Number 029 - 005- 00014 -1) is available for this purpose and may be purchased from the =- Superintendent of Documents U.S. Government Printing Office Washington, DC 20402 The Prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. EXHIBIT 4 (2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the award and shall certify — (i) That the payroll for the payroll period contains the information required to be maintained under paragraph (a) of this article and that such information is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the award during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR Part 3; and (iii)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the award. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by subparagraph (b)(2) of this article. (4) The falsification of any of the certifications in this article may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code. (c) The Contractor or subcontractor shall make the records required under paragraph (a) of this article available for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit required records or to make them available, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Withholding of Funds The Contracting Officer shall, upon his or her own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this award or any other Federal award with the same Prime Contractor, or any other federally assisted award subject to Davis -Bacon prevailing wage requirements, which is held by the same Prime Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the award. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the award, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Apprentices and Trainees (a) Apprentices. EXHIBIT 4 (1) An apprentice will be permitted to work at less than the predetermined rate for the work they performed when they are employed (i) Pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship and Training, Employer, and Labor Services (OATELS) or with a State Apprenticeship Agency recognized by the OATELS; or (ii) In the first 90 days of probationary employment as an apprentice in such an apprenticeship program, even though not individually registered in the program, if certified by the OATELS or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. (3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(1) of this article, shall be paid not less than the applicable wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (4) Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. (5) Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (6) In the event OATELS, or a State Apprenticeship Agency recognized by OATELS, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (b) Trainees. (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer, and Labor Services (OATELS). The ratio of EXHIBIT 4 trainees to journeymen on the job site shall not be greater than permitted under the plan approved by OATELS. (2) Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed in the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate in the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the OATELS shall be paid not less than the applicable wage rate in the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate in the wage determination for the work actually performed. (3) In the event OATELS withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (4) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this article shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR Part 30. Compliance with Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by reference in this award. Subcontracts (Labor Standards) (a) Definition. "Construction, alteration or repair," as used in this article means all types of work done by laborers and mechanics employed by the construction Contractor or construction subcontractor on a particular building or work at the site thereof, including without limitation— (1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off -site; (2) Painting and decorating; (3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work; (4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis Bacon Act of this award, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the "site of work" definition; and EXHIBIT 4 (5) Transportation of portions, of the building or work between a secondary site where a significant portion of the building -or work is constructed, which is part of the "site of the work" definition in paragraph (a) (1) (ii) of the Davis -Bacon Act article, and the physical place or places where the building or work will remain (paragraph (a) (1) (i) of the Davis Bacon Act article, in the "site of the work" definition). (b) The Contractor or subcontractor shall insert in any subcontracts for construction, alterations and repairs within the United States the articles entitled— (1) Davis -Bacon Act; (2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is included in this award); (3) Apprentices and Trainees; (4) Payrolls and Basic Records; (5) Compliance with Copeland Act Requirements; (6) Withholding of Funds; (7) Subcontracts (Labor Standards); (8) Contract Termination – Debarment; (9) Disputes Concerning Labor Standards; (10) Compliance with Davis -Bacon and Related Act Regulations; and (11) Certification of Eligibility. (c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor performing construction within the United States with all the award articles cited in paragraph (b). (d) (1) Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting Officer a completed Standard Form (SF) 1413, Statement and Acknowledgment, for each subcontract for construction within the United States, including the subcontractor's signed and dated acknowledgment that the articles set forth in paragraph (b) of this article have been included in the subcontract. Within 14 days after the award of any subsequently awarded subcontract the Contractor shall deliver to the Contracting Officer an updated completed SF 1413 for such additional subcontract. (e) The Contractor shall insert the substance of this article, including this paragraph (e) in all subcontracts for construction within the United States. EXHIBIT 4 Contract Termination -- Debarment A breach of the award articles entitled. Davis -Bacon Act, Contract Work Hours and Safety Standards Act -- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Davis -Bacon and Related Act Regulations, or Certification of Eligibility may be grounds for termination of the whole award or in part for the Recovery Act covered work only, and for debarment as a Contractor and subcontractor as provided in 29 CFR 5.12. Compliance with Davis -Bacon and Related Act Regulations All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are hereby incorporated by reference in this award. Disputes Concerning Labor Standards The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes and Appeals as defined in 10 CFR 600.22. Disputes within the meaning of this article include disputes between the Contractor (and any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification of Eligibility (a) By entering into this award, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government awards by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (b) No part of this award shall be subcontracted to any person or firm ineligible for award of a Government award by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Approval of Wage Rates All straight time wage rates, and overtime rates based thereon, for laborers and mechanics engaged in work under this award must be submitted for approval in writing by the head of the contracting activity or a representative expressly designated for this purpose, if the straight time wages exceed the rates for corresponding classifications contained in the applicable Davis -Bacon Act minimum wage determination included in the award. Any amount paid by the Contractor to any laborer or mechanic in excess of the agency approved wage rate shall be at the expense of the Contractor and shall not be reimbursed by the Government. If the Government refuses to authorize the use of the overtime, the Contractor is not released from the obligation to pay employees at the required overtime rates for any overtime actually worked. BUY AMERICAN ACT COMPLIANCE REQUIREMENTS The Contractor acknowledges to and for the benefit of the City of Denton that it understands the goods and services under this Agreement are being funded with monies made available by the American EXHIBIT 4 Reinvestment and Recovery Act of 2009 (Recovery Act) (or are being made available for a project being funded with monies made available by the Recovery Act) and section 1605 of such law contains provisions commonly known as "Buy American." The Buy American requirement prohibits the use of Recovery Act funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States ( "Buy American requirement ") including iron, steel, and manufactured goods provided by the Contractor pursuant to this Agreement. The Contractor hereby represents and warrants to and for the benefit of the Department of Energy (DOE) grantee that (a) the Contractor has reviewed and understands the Buy American requirement, (b) all of the iron, steel, and manufactured goods used in the project will be and /or have been produced in the United States in a manner that complies with the Buy American requirement, unless an exception to the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support an exception to the Buy American requirement, as may be requested by the DOE grantee or DOE. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the DOE grantee to recover as damages against the Contractor any loss, expense or cost (including without limitation attorney's fees) incurred by the DOE grantee resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part from DOE). Neither this paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the DOE grantee. The requirements for the Buy American Act as stated in the Recovery and Reinvestment Act Grant are as follows: REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) THIS AWARD TERM IS APPLICABLE TO ANY RECOVERY ACT FUNDS FOR CONSTR UCTION, AL TERATION, MAINTENANCE, OR REPAIR OF A PUBLIC B UILDING OR PUBLIC WORK AND THE TOTAL PROJECT VALUE IS ESTIMATED LESS THAN $7,443,000. THIS AWARD TERM ALSO APPLIES TO ALL SUBGRANTSAND CONTRACTS. a. Definitions. As used in this award term and condition— (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been - (i) Processed into a specific form and shape; or (ii) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. (2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi - State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers; mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. EXHIBIT 4 (3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbons, and may include other elements. b. Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111 - -5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition. (2) This requirement does not apply to the material listed by the Federal Government as follows: None [Award official to list applicable excepted materials or indicate "none "] (3) The award official may add other iron, steel, and /or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that- - (i) The cost of the domestic iron, steel, and /or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (ii) The iron, steel, and /or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of inapplicability of Section 1605 of the Recovery Act. (1) Any recipient request to use foreign iron, steel, and /or manufactured goods in accordance with paragraph (b) (3) of this section shall include adequate information for Federal Government valuation of the request, including— (A) A description of the foreign and domestic iron, steel, and /or manufactured goods; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H) A detailed justification'of the reason for use of foreign iron, steel, and /or'manufactured goods cited in accordance with paragraph (b) (3) of this section. (i) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (ii) The cost of iron, steel, and /or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iii)Any recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and List EXHIBIT 4 could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and /or relevant manufactured goods. When the basis for the exception is non - availability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and /or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and /or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and /or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act. d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison ..... ......... Cost Description Unit of Measure Quantity (dollars)* Item 1. Forei n steel, iron, or manufactured ood ..................... ..............r.............�.� .�.� .. , or manufactured good — ._..m. ...Domestic steel, iron „_... _w.._. Item 2: Forei n steel, iron or manufactured ood _ ,._.��ww. g Domestic steel, iron, or manufactured Food ........ ... -- mm - -- ------- - - - --- name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. EXHIBIT 4 Exhibit F Pa ment and Performance Bonds EXHIBIT 4 PERFORMANCE BOND S I ATE OF TEXAS COUN I Y OF DENTON 7.130,11MR14WINZ. KNOW AL 1 EN DYTj4ESj1,' Tlco whose address is Liberty M al U8 a kt COVPM36011 Ort?Iiiizetl Mid existing onder the inNys of the Strmte 0 08, and folly authorized to transact business in the Stift ol'Texati, as Surety, are held arid firmly bound unto the City of Denton, a municipal corporation tirg,Rnized atuf eximilig ull(ler uJrc Jjjw$ State W,,lCxaq, hereinafter called Owner, in die penal sum of'SEVENI, i IUNDRED AND F1l"'l'Y­Sl1V" �N'rrl(')USAND, AND SEVENTY-THREE DOLLARS AND NO CENTS mjj Jajwj'tfl Money cif the (hii(ed'States, to be paid in Denton County, Texas, for the payment of Which sum well mid 11111' �V 10 bra lil,Ade,'we hereby bilid ourselves, our heirs, executors, administrators, successors, alld assignsjoirit(y and severa« ➢y, firijily by these presimls. This Bond shall automatically be increased by the 0MOU"t of shay Change Order or 18'Uj)j)lell1e1Wd Agreement, which increases the Conti-act price, but in no event shall 11 Order 01' Suj)J'Actllcnlai Agrucinciii, which reduces the Contract price, decrease the penal sum of this Hcmd' THE OB11GATION TO PAN' SAME is conditioned as follows; Whereas, the Principal entered illi(i aW cerlaiij ('ojijrjct, i(jetqi('jexl by Ordinance, with [lie City of Denton, the Owner, dWcdjbKjtf)'ajy of,' gjq,� gjjj KI L0_:1aC0j)y()j'w11i6 is her(qoalfached and made apart lierool", for the Construction el vices stli'lod withill Cunt raclfl,srsso Construct i0l, ot"City (ti" Diciton Mack Park, North Lakes, and Roberts Restroorn Buildings. NW 1111 luiRl +010", if the Principal shall well, truly and faithfully perform and fulfill all of the Underlakings, covcjjajjts, jel,sils, cojiditions and agreements of said Contracl in accordance with the Plans, Specifications and conlract Docunienis during the original term thereof and any extensioio thereof whiell may be granted by the Owner, witil, tad- wilhotit notice to the Surely, and during the lire ofimy gwirflilly or won-anty I'mitured litider and stroll also well alid buly perform and fulfill all the undertakings, covenants, It ins, conditions aj)d agreemelits ofi'lny and all duly oulljorized' modifications off'said Conti-act that nitty hereafter be Illkldc, lloficV (Awbic), lllodifica600is to the Surety being hereby waived; wid. if (lie Principal shall repair and/or wphwe all delewu duo to ('11Wly 111"11crials and w("Oollanship Ifiat appear within a period of two (2) years from the daw of collipletion and final acceptance ol'tile, Work by the Owner; and, if the Principal shall fully indemnify alid saw: harusloss tile Owner liom all costs and dainagcs which Owner may suffer by reason of failure to so poll'orlil horein and shall l"I'llY WilillAls'se and repay Owner all outlay and expense which the Owner may incur in lllsljt ing good ally defatilt or deficiency, then this obligation shall be void, otherwise, it shall remain in full ral-ce awl efiict. EXHIBIT 4 This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the Stale of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such surety, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in 1 topics, each one of which shall be deemed an original, this the day of ATTEST: BY ATTEST: BY. /-4' , w Sandra L. Ham, Witness PRINCIPAL BY: CXT Incorporated PRESIDENT SUR1'TY: Liberty Mutual Insurance Company BY: ATTORNEY-4il 1 °AC t" tl rty L. Joirrton The Resident Agent of the Surety in Denton Cowriy, Texas for delivery of notice and service of the process is: NAME: Liberty Mutual Surety, Attn: Lacasha Grimes STREET ADDRESS: 8350 N. Central Expressway, Suite 850, Dallas, TX 75206 (NOTE: haler of Paynrert! Bard nrttsl he dale of ('anlraci. if Resident Ag( -itt is not a eorporaliott, glue ct persons nante.) EXHIBIT 4 ACKNOWLEDGMENT BY SURETY STATE OF Missollf-i City of St. Louis . ... I SS. On this day of . .. . . ......... -I,--.- , � -- -111 , bellore nic personally appear cd a -in-Fact of Nnc,y Johnson ".. . . .......... 11— known to me to be the Attorney Liberty Mutual Insurance Company .... . ..... .. [lie corporation that execilled the widlill iii.4ti'llillcllt,,ui(it(,kiiowle(ige(I to me that such corporat-ion ......... executed tile swile. IN Wl'l`NESS WHERI-',()F, I have hereunto set lily timid wid 0ixed illy offickd scd, at illy offilm in the Aol-cs;kl County, the day and yell- in this eel-tific'.11C lust above written. My Commission Expires: ki=20,2018 (Seal) Notary Put-Alc, %Qcjt Sk,Ak,l of mh,,�xnpj St, LOU],$ City C o i ri rt,) I '14 3 e /' S-02301GEEF 2/98 I)AA&O v JOA 4si IC Fnmik Noy aly Public ill the State of Missouri City of St, 1,ollis Commission #14395672 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those if herein, and they have no authority to hind the Company except In the manner and to the extent herein stated. Certificate No. 7012362 I 1120111#1121 till I I IVA "b"'U"141,1014 1111 ON 'I KNOWN ALL PERSONS BY THESE PRESENTS: ThatAmerican Fire & Casualty Company and The Ohio Casualty Insurance Company are corporations duly organized under the laws of the State of Now Hampshire, that Liberty Mutual Insurance Company Is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company is a corporation duly orq,nnJvxI undue Jfvl 11W5 of the Slate of Iryhw) (fier& follwAvoly Called I110 'Companjes'I, pursig"11 to and by awhn6ly torero sO forlb, dow', horoby name, corwituto and appoint, IL wm. ij(r e R, Fr a ik NI-1alo, q'y'J )0raw)0qmqI:@AP5'1A Sandra L. Ham -1111­111­1­1111­ ­­ ........ . .... . ............. ............... ... . ....... .. .... ..... .. .......... . .. . . .... . ...... all of the city of-�jt- _Louis. state of MO each individually If there be more than one named, Its true and lawful attorney-in-fact to make, execute, seal, acknowledge ffif Apqn j.rn-pniq qj4 q�211 IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 81h —day or .. June American Fire and Casualty Company The Ohio Casualty Insurance Company Uborty Mutual Insurance Company West Aillerican Insurance Company Its By: �"V ' .. . ...... ............... David M. Car, smoant Secretary 199 0E ...... ..... . ­�' American Fire and Casualty Company The Ohio Casualty Insurance Company Uborty Mutual Insurance Company West Aillerican Insurance Company Its By: �"V ' .. . ...... ............... David M. Car, smoant Secretary > S M!121�111111 M =K7. EXHIBIT 4 Bond No, 019050344 PAYMEM BOND EXHIBIT 4 PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in Denton County, State of Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be. delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in 1 copies, each one of which shall be deemed an original, this the day of _ ATTEST: PRINCIPAI,, CXT Incorporated BY: PRESIDENT _ SURETY Liberty Mutual Insurance Company ATTORNEY- IN- FACA Nancy L, Johnson "rile Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is: NAME: Liberty Mutual Surety, Attn: Lacasha Grimes STREET ADDRESS: 8350 N. Central Expressway, Suite 850, Dallas, TX 75206 (NOTE, Date. of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name.) EXHIBIT 4 ACKNOWLEDGMENT BY SURETY STNIT', 011P Missouri "I'll" ............. - - ity of S(. Lows SS. C 01i this day of bdore me personally known to nie to be (lie Attoriiey-iii-Fm I of Liberty Mutual Insurance Company , the corponation executccl the w i i i n's—h-t — t e i (—,caul ac k i"o wI, e(-fg" e ("fioil let 1, , t 's, i ic" —h-( o i .p....o......r.. . a...L. i.. — on - - - ex-- e- -c---u--- t-e---d --- - the sane. ---- IN Wrl'NESS WHEREOF, I have hereunto set lily llwld wid Alixed lily offileNd SCA, at illy offi•c in Ille Abl-es dd County, the day slid year in this •ertifleale ru-st above written. My Commission Expires: (SCA) W', .0l -N-ot"ary s oiGSl,c fk,00(v Seal ?fl, LOUD cl, I1 y Commission # 1,1395672 My CoMinlo;ion Explros 4,p u; 20, 7018 S-02301GEEF 2198 ................... N inty Public in t lie State of Missouri City 01• St. IA)1liS Commission # 14395672 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT 15 PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except In the manner and to the extent herein stated, Certificate No. L012363 is 1g&Wj1 I L1 f 1. III I ; I 1� KNOWN ALL PERSONS BY THESE PRESENTS: Thai American Fire & Casualty Company and The Ohio Casualty Insurance Company are corporations duly organized under the laws of the State of New Hampshire, that Liberty Mulual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and WestAmedGan Insurance Company is a corporation duly organized under the laws of the State of Indiana (herein collectively called the 'Companies'), pursuant to and by authority herein set forth, does hereby name, constitute and appoint, . . . ..... Arm R Friink,,Karoo L� R I r �Nq 0,do i soi J!kq�e4 (kj3e(,Wn,an, Sandra L. Ham EMEEMMEM EXHIBIT 4 Exhibit G Insurance Requirements and Contractor Documentation EXHIBIT 4 r DATE (MM /DD/YYYY) A RLIO CERTIFICATE OF LIABILITY INSURANCE /6/21/2015 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(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME; SixrPPGgSPlalce, Suite 400 PHONE _ NC A1P No InxL1 (ANC APO) Pittsburgh, PA 15222 MARL Pittsburgh .cerlrequest @marsh.com nfarafaEW.. INSURERS) AFFORDING COVERAGE NAIC # 051823-- Cas -15 -16 CXT INSURER A . Liberty Surplus Insurance Corporation 10725 ......... ......... INSURED INSURER B American Guarantee & Liability Ins Co 26247 CXT, Incorporated __ ...... 3808 North Sullivan Rd. INSURER C : Sentry Casualty Company 28460 Spokane, WA 99216 P INSURER D INSURER E INSURER F : COVERAGES CERTIFICATE NUMBER: CLE- 004988470 -01 REVISION NUMBER:2 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR Aim 80BR „ POLICY EFF POUCY EXP LTR TYPE OF INSURANCE III Wyn POLICY NUMBER MMPODI'YYYY). MWDCSJ"A..'Yk.Y LIMITS ....._.- .�....�,.... _... A X COMMERCIAL GENERAL LIABILITY GLHV318842 -3 01/01/2015 0110112016 EACH OCCURRENCE $ 1,001,010 CLAIMS -MADE M OCCUR pE f M E ct Ir uffulcol $ ........ 1,000 000 ... ..... ....... MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 1,000,000 ........ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY X � PRO- � LOC PRODUCTS - OMP/OP AGG $ 2,000,000 C OTHER POLICY AGGREGATE $ 10,000,000 «wawa AUTOMOBILE LIABILITY COMBINE U I0NCaLE LIMIT $ (Ea acu.Idt nt) .,,,, , ANY AUTO BODILY INJURY (Per person) $ . ALL OWNED SCHEDULED .......... --- ...... AUTOS AUTOS BODILY INJURY (Per accident) $ . HIRED AUTOS NNONNOSWNED P R PER!*'[JkMAGE. $ _ C rae'ggci YPntl $ B X UMBRELLA LIAB X OCCUR AUC- 9378203 -11 01/01/2015 01/01/2016 EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS -MADE "AGGREGATE $ 5,000,000 DED RETENTION $ $ ...... _ - ...... �. R OTH- C WORKERS COMPENSATION 90- 14714 -01 (AOS) 01/0112015 01/01/2016 X STPEATUTE FR, C ( ®PROPRIETOR/PARTNER/EXECUTIVE U ? 1YN, NIA no t Stop Gap Employers lLiability 01101/2015 01I01I2016 e �- EACH ACCIDENT PLOYeE 1,000,000 If yyes, describe under ( for OH, ND, WA, WY & Canadian Prov. 1,000,000 DESCRIPTION OF OPERATIONS below E L DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) The City of Denton, its Officials, Agents, Employees, and Volunteers is /are included as an Additional Insured under the General Liability where required by written contract. This insurance is primary and non- contributory over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract. Waiver of Subrogation is applicable where required by written contract. The Umbrella policy is excess over the captioned General Liability and Workers Compensation /Employers Liability policies. The Umbrella policy is excess over Auto policy #AS2641443762015 policy term 1/1/15 to 1/1/16 CSL $1,000,000. CERTIFICATE HOLDER CANCELLATION State of Texas SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Denton THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 9018 Texas Street ACCORDANCE WITH THE POLICY PROVISIONS. Denton, TX 76209 AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee µ @ 1988 -2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD EXHIBIT 4 Client #: 15056 LBFOST DATE (MM /DD/YYYY) ACORD. CERTIFICATE OF LIABILITY INSURANCE 8/25/2015 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. ..... ........ I OR ANT: I... 'flcate holder is an ADDITIONAL INSURED, the poli l .. If the cep' � cy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s), PRODUCER arc'" Frank Parnpeno HDH Pittsburgh P &C FGDNI 412 391 -7300 I I _ I c NQ} ( X12 391 7322 210 Sixth Avenue, 30th Floor EMAIL — ..... AD DRF s s: I -p a rn pia a O hdlg g ro a p,O orn Pittsburgh, PA 15222 INSURERA. Liberty Mutual F re In lNGCOVERAGE ^� N5 412 391 -7300 Alca _ ...........w . _. Insurance C 2303 INSURED INSURER B : CXT, Inc. ............ ... _....__ __. ..... _._._ ............... INSURER C : 415 Holiday Drive ...... ......... ..........._ . INSURER D : Pittsburgh, PA 15220 .....,, ......... ....... ......... . INSURER E . INSURER F! COVERAGES CERTIFICATE NUMBER: 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 CONTRACTOR 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. fSR TFfi TYPE OF INSURANCE ...................................................... ADDL INSR VBB'�i... WVrr d POLICY NUMBER ,e _060 YEFF... (MM/DD/YYYY) POLICYEXP (MWDDIYYYY) ., ®„ LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY � ... .,, I "y Flu^t sarurnwq.$ ...... $ '',...... CLAIMS -MADE F_ OCCUR MED EXP (Any one Person) _ $ PERSONAL & ADV INJURY $ .,.._.. ---- — ------ - --- - ---- GE.NIERAL.AGGREGIATL. ........ .... �,.. $ .. „ ........ _. —. GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ „ PRO- I �.. $ POLICY ,Il.lrt LOC _._. ................ .. ,,, ,_ , ,,,,,,,, .... ..... A .I, AUTOMOBILE LIABILITY 4 2015 AS264 144376 1/01/2015 01I011201 CO�MBILd1.rr N&INtaLk LlMlB' L ,� n'4CAIkdFifB $1,000,000 $ X ANY AUTO BODILY INJURY (Per person) ........ $ ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ ...........w., AUTOS .,,, AUTOS ......... ,X X NON -OWNED PIIOREIJ IfY DAMAtsE.......... $ HIREDAUTOS AUTOS (I'!r;r pyeldt«,n(j UMBRELLA LIAR I'll OCCUR EACH OCCURRENCE $ EXCESS LIAR CLAIMS MADE AGGREGATE $ L I RETENTION$ $ WORKERS ,DED ,...... .. _,......, COMPENSATION .,,,, >..... ..,.......,.,.,.,...u... ............. WC STATU- OTH AND EMPLOYERS' LIABILITY YIN TORXaLIIuTS .FR ... _ _ , ......, ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED' N/A (Mandatory In NH) E.L. DISEASE EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below -- ------ -------- _ ...___ .. .._______ ....... -- ......... ,,M , .,.. ,,, .______ .. LI E.L. DISEASE - POLICY ,MIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/ VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) The City of Denton, its Officials, Agents, Employees, and Volunteers is named as additional insured. A waiver of subrogation applies. Coverage is primary and non - contributory. CER"T "IFICATE HOLDER CANCELLATION State of Texas 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 ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) 1 of 1 The ACORD name and logo are registered marks of ACORD #S605167/M604754 FPO EXHIBIT 4 INSURANCE REQUIREMENTS AND WORKER'S COMPENSENTATION REQUIREMENTS Respondent's attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their respective insurance carriers or brokers to determine in advance of Proposal /Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low respondent fails to comply strictly with the insurance requirements, that respondent may be disqualified from award of the contract. Upon contract award, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of contract award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, 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 proposaUbid. 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. • 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. EXHIBIT 4 • 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. EXHIBIT 4 [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 Worker's 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 Worker's Compensation Commission (TWCC). [ X] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance 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 _ ,,,,,,___,_,,,,,,,,,,_,r.. each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. EXHIBIT 4 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than ,$ ............. ..........................._.r. 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. [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. EXHIBIT 4 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 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 EXHIBIT 4 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, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. EXHIBIT 4 Exhibit H Contractor Business Information CONFIDI,'INTIAL City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -705, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance approving the expenditure of funds for the purchase of a Verderflex Peristaltic Hose Pump System to be used for the application 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 5908- awarded to Verder, Inc. in the not -to- exceed amount of $196,207). The Public Utilities Board recommends approval (4 -0). FILE INFORMATION The Pecan Creek Water Reclamation Plant (PCWRP) regulatory permit requires meeting 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. To apply the ferric chloride to various application points in the process stream, specialty pumps are required. Staff has worked with their consultant, CDM Smith, to review and evaluate the pumps available for this application. Based on this review, the Verderflex Peristaltic Hose Pump was determined to be the best match for the application. The Verderflex pump offers the following advantages: • Abrasion Resistant No moving parts in the liquid stream • Accurate Dosing Self Priming Can pump liquids containing up to 80% inorganic solids (fines) • Easy and completely cleanable without disassembly Can run dry • No seals • Reversible rotation, empties line or blockages These qualities make for a very robust pump operation as well as minimal maintenance requirements. In addition, the pumps can be purchased pre- mounted on a pumping skid for easy installation. City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -705, Version: 1 Verder, Inc. has provided a quote for the seven (7) required Verderflex skid mounted pumps complete with all electrical, electronic equipment, and software package (Exhibit 1). Staff is not aware of any other company that makes these chemical delivery pumps that meet the required specifications, specifically with no moving parts in the liquid stream. The absence of contact between the chemical and the moving parts in the pump provides for a robust and trouble free operation. As such, the Wastewater Department is requesting the approval of a single source purchase from Verder, Inc. who is the sole provider of these pumps (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 Approve the purchase of a Verderflex Peristaltic Hose Pump System to be used for the application of ferric chloride for the Pecan Creek Water Reclamation Plant in the not -to- exceed amount of $196,207. PRINCIPAL PLACE OF BUSINESS Verder, Inc. Macon, GA ESTIMATED SCHEDULE OF PROJECT The pumps are estimated to be delivered and installed within 12 -14 weeks of receipt of a purchase order. FISCAL INFORMATION The services will be funded from the Wastewater capital Project Fund account 640241545.1360.40100. Requisition 4125195 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Quote from Verder, Inc. Exhibit 2: Sole Source Staff Memo Exhibit 3: PUB Draft Minutes Exhibit 4: Ordinance Exhibit 5: Contract Respectfully submitted: City of Denton Page 2 of 3 Printed on 9/10/2015 File M ID 15 -705, Version: 1 Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: PS Arora at 349 -7189. City of Denton Page 3 of 3 Printed on 9/10/2015 h rvvm d by I cx:ls i''I EXHIBIT 1 8/28/15 City of Denton, TX Reference: Verderflex RFQ— Pecan Creek WWTP Quotation # SQ00509.4 Verder, Inc. Kerry Ayres Expiration Date: 11/14/2015 Terms: TBD Application — Ferric Chloride, 30 psi discharge pressure with flooded suction and ambient pumping temperature. QTY. (7) - Pump Units — to deliver 3.5 -100 gph @ 3 -88 rpm Verderflex Peristaltic Hose Pump Unit equipped as follows: • Verderflex Model Dura 15 • Cast iron pump housing • Cast iron rotor (standard pressure up to 90 psi) • ANSI 150# 304SS flanges with %" ports • Polypropylene hose inserts • Pump to be mounted on powder coated carbon steel frame • Natural Rubber Hose • VFOCS Leak Detection • Gear reducer, sized for 88 rpm output, NEW input • 1 hp Washdown- Inverter duty Motor Ti 1750 rpm, 3/60/230- 460VAC, • Includes two spare hoses per pump and one 55- gallon drum of hose lube QTY. (1) — Quadraplex Pumping Skid equipped as follows: QTY. (1) — Triplex Pumping Skid equipped as follows: • HDPE frame with spill containment, W SCH 80 PVC piping, dedicated pressure relief, pressure gauge w /isolation diaphragm, pulsation dampener, and isolation valves. Common calibration column. EPDM /Hypalon seals and o- rings. Assembled and tested. Skids to be set up for six dedicated feed points, with pump 7 a swing pump that can feed any of the six feed points. Skids are set up to be placed side -by -side and piped together to create a 7 -pump system. EXHIBIT 1 QTY. (7) — VFDs, mounted on skid back panel • NEMA 4X enclosure, display for status and flow rate, 200- 230VAC input - VACON Model # 4XC20030C, 2 hp heavy -duty, de -rated to 1 hp for 114 °F temp rating - Local and remote control - Speed input and feedback, remote start /stop, run and fail status QTY. (1) — Control panel, based on specification section 11240 - NEMA 4X 316SS wall mount Enclosure approximately 36 "x 36 "x 12" - Gasketed door with 3 -point latch system - One UPS battery back up - One Modicon M340 processor with the required 1/0 cards - One Panelview 15" HMI touchscreen - Additional Panelview 15" HMI touchscreen w /program (supplied as spare) - One surge arrestor for incoming feed - One Phase Monitor - One 120VAC surge protection with line filtering - One 24VDC power supply - One alarm horn and beacon - Two Level display meters for tank levels - One pilot light and 2 position selector switch - Interposing Relays for all Field Outputs - One Illuminated E -Stop button mounted on door. Devices to be Heavy Duty 30mm. - Required internal terminal blocks, branch circuit protection, tags, mounting hardware, wireway, etc. - One copy of Unity Pro XL software - Up to 20 line surge protectors for outgoing discrete signals - Up to 20 surge protectors for analog incoming and outgoing signals - Up to 10 Ethernet surge suppressors for incoming and outgoing Ethernet lines - One 30A 230VAC main circuit breaker with through door discount handle Inland marine insurance policy to cover equipment package in transit to jobsite. Startup services: 3 days Verder personnel onsite for installation /startup supervision and /or operator training. Total Price, fixed: $196,207.00 EXHIBIT 1 Estimated delivery is 12 -14 weeks with order, notice to proceed, and upon approved credit. Notes /Exceptions: 1. Verder Terms and Conditions apply, (under review as of proposal date.) 2. Anchor bolts and any item not specifically mentioned on this quotation will be supplied by others. 3. Freight charges are included. F. 0.8. Destination. 4. No top end programming of owners SCADA system is provided in this proposal. 5. Expected 30A 230V 3PH with neutral and ground service to panel. 6. Any other major equipment, panels, instruments, or services unless specifically called -out above. 7. Installation of all equipment, instrumentation, and panels shall be by others. 8. All conduit and wire shall be provided and installed by others. 9. All field wiring shall be provided and terminated by others. 10. Not included: any fiber optic cable, patch panels, termination of fiber, or testing of fiber. 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: Verderflex Peristaltic Hose Pump 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 application of ferric chloride to precipitate the phosphorus in the process train. To apply the ferric chloride to various application points in the process stream, specialty pumps are required. Staff has worked with the design consultant to review the pumps available for this application. Based on this review Verderflex Peristaltic Hose Pump was determined to be the best match for the application. The Verderflex pumps offer the following advantages; • Abrasion Resistant • No moving parts in the liquid stream • Accurate Dosing • Self Priming • Can pump liquids containing up to 80% inorganic solids (fines) • Easy and completely cleanable without disassembly • Can run dry • No seals • Reversible rotation, empties line or blockages The pumping operation of the Verderflex pumps is similar to a human swallowing liquid and is proprietary to Verder, Inc. In addition, the pumps can be purchased pre- mounted in a pumping skid for easy installation. There is no other company that makes these chemical delivery pumps that meet the above specifications, specifically with no moving parts in the liquid stream. No contact with the chemical with the moving parts in the pump provide for a robust and trouble free operation. As such, the wastewater department is requesting a Single Source purchase from Verder, Inc. who is the sole provider of these pumps. 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: 3. Consider recommending approval of the purchase of the Verderflex Peristaltic Hose Pump system for application of ferric chloride for the Pecan Creek Water Reclamation Plant phosphorus removal project from Verder Inc. in the amount of $196,567. Motion was made to approve item 3 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 A VERDERFLEX PERISTALTIC HOSE PUMP SYSTEM TO BE USED FOR THE APPLICATION 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 5908- AWARDED TO VERDER, INC. IN THE NOT -TO- EXCEED AMOUNT OF $196,207). 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 5908 Verder, Inc. $196,207 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 5908 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 ffig APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 .......... r r/� City of Denton Contract # 5908 City of Denton Verderflex Peristaltic Hose Pump System 000wSWn Envelope ID: rr44ro 54-40C0orC1250E EXHIBIT 6 CONTRACT AGREEMENT #5908 BY AND BETWEEN CITY OF DENTON, TEXAS AND VERDER, INC. For and in consideration of the covenants and agreements contained herein, and for thr. mutual benefits to be obtained hereby, the parties agree as follows: Supplier shall provide products in accordance with the provisions of this Contract, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Verder's Proposal and Pricing #SQ00509.4 (Exhibit "A"); (b) Terms and Conditions (Exhibit 111111); (c) Awarded Contractor Documentation (Exhibit "C"); (d) Insurance Documentation (Exhibit I'D"); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E") DocuSign Envelope ID: 7F447DEB-3C38-4972-8B54-4000DFC1250E EXHIBIT 6 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. n-V 1:01M ATTEST: JENNIFER WALTERS, CITY SECRETARY M. ]Lill DocuSigned by: John Knight BY: — ------ ---- G&2-W96G2A2,B439� DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 Attachment A Contract # 5908 1 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 8/28/15 City of Denton, TX Reference: Verderflex RFQ— Pecan Creek WWTP VIE111DER Quotation # SQ00509.4 Verder, Inc. Kerry Ayres Expiration Date: 11/14/2015 Terms: TBD Application — Ferric Chloride, 30 psi discharge pressure with flooded suction and ambient pumping temperature. QTY. (7) - Pump Units — to deliver 3.5 -100 gph @ 3 -88 rpm Verderflex Peristaltic Hose Pump Unit equipped as follows: • Verderflex Model Dura 15 • Cast iron pump housing • Cast iron rotor (standard pressure up to 90 psi) • ANSI 150# 304SS flanges with %" ports • Polypropylene hose inserts • Pump to be mounted on powder coated carbon steel frame • Natural Rubber Hose • VFOCS Leak Detection • Gear reducer, sized for 88 rpm output, NEMA input • 1 hp Washdown- Inverter duty Motor TENV, 1750 rpm, 3/60/230- 460VAC, • Includes two spare hoses per pump and one 55- gallon drum of hose lube QTY. (1) — Quadraplex Pumping Skid equipped as follows: QTY. (1) — Triplex Pumping Skid equipped as follows: • HDPE frame with spill containment, %" SCH 80 PVC piping, dedicated pressure relief, pressure gauge w /isolation diaphragm, pulsation dampener, and isolation valves. Common calibration column. EPDM /Hypalon seals and o- rings. Assembled and tested. Skids to be set up for six dedicated feed points, with pump 7 a swing pump that can feed any of the six feed points. Skids are set up to be placed side -by -side and piped together to create a 7 -pump system. DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 QTY. (7) — VFDs, mounted on skid back panel • NEMA 4X enclosure, display for status and flow rate, 200- 230VAC input - VACON Model # 4XC20030C, 2 hp heavy -duty, de -rated to 1 hp for 114 °F temp rating - Local and remote control - Speed input and feedback, remote start /stop, run and fail status QTY. (1) — Control panel, based on specification section 11240 - NEMA 4X 316SS wall mount Enclosure approximately 36 "x 36 "x 12" - Gasketed door with 3 -point latch system - One UPS battery back up - One Modicon M340 processor with the required 1/0 cards - One Panelview 15" HMI touchscreen - Additional Panelview 15" HMI touchscreen w /program (supplied as spare) - One surge arrestor for incoming feed - One Phase Monitor - One 120VAC surge protection with line filtering - One 24VDC power supply - One alarm horn and beacon - Two Level display meters for tank levels - One pilot light and 2 position selector switch - Interposing Relays for all Field Outputs - One Illuminated E -Stop button mounted on door. Devices to be Heavy Duty 30mm. - Required internal terminal blocks, branch circuit protection, tags, mounting hardware, wireway, etc. - One copy of Unity Pro XL software - Up to 20 line surge protectors for outgoing discrete signals - Up to 20 surge protectors for analog incoming and outgoing signals - Up to 10 Ethernet surge suppressors for incoming and outgoing Ethernet lines - One 30A 230VAC main circuit breaker with through door discount handle Inland marine insurance policy to cover equipment package in transit to jobsite. Startup services: 3 days Verder personnel onsite for installation /startup supervision and /or operator training. Total Price, fixed: $196,207.00 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 Estimated delivery is 12 -14 weeks with order, notice to proceed, and upon approved credit. ...- ..._...-- .............. � _.._......_ Notes /Exceptions: 1. Verder Terms and Conditions apply, (under review as of proposal date.) 2. Anchor bolts and any item not specifically mentioned on this quotation will be supplied by others. 3. Freight charges are included. F. 0.8. Destination. 4. No top end programming of owners SCADA system is provided in this proposal. S. Expected 30A 230V 3PH with neutral and ground service to panel. 6. Any other major equipment, panels, instruments, or services unless specifically called -out above. 7. Installation of all equipment, instrumentation, and panels shall be by others. 8. All conduit and wire shall be provided and installed by others. 9. All field wiring shall be provided and terminated by others. 10. Not included: any fiber optic cable, patch panels, termination of fiber, or testing of fiber. DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 1i: DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 CONTRACT 95909 REVISED TERMS AND CONDITIONS FOR PUMP SKID AND CONTROL PANEL OFFER TO CITY OF DENTON, TEXAS 1. Payment Terms — Unless expressly accepted in writing by an officer or manager of Verder, Inc. (hereinafter referred to as the "Seller "), all payment terms are due Net 30 days and balances not paid within terms are subject to a monthly late charge of the lesser of 1.5% of the outstanding balance, or the maximum amount allowed under Texas Government Code 2251 (Prompt Payment Act). In addition, if so ordered by a Court of Competent Jurisdiction, the City of Denton (hereinafter referred to as the "Buyer ") shall be liable for all costs of collecting past due balances, including any legal fees and court costs. All orders accepted are subject to credit investigation and approval by the Seller. If at any time Seller, in its sole judgment, shall feel insecure as to the Buyer's willingness or ability to make payment, Seller may require full or partial payment in advance of shipping goods or performing services. In such cases, Seller also reserves the right to decline to make deliveries or to stop goods in transit should they have already shipped. 2. Retention - Should retention be required as a part of the order, it must be approved by Seller in advance, which approval will not be unreasonably withheld, in writing, it shall not exceed 10% of the total order amount (excluding freight and taxes), and must be paid upon completion of Seller's duties under this contract or within 120 days of invoicing, whichever comes first. Any exceptions must be approved by Seller in writing. 3. Price and Shipping Terms - All prices are being quoted are F.O.B. Destination and are valid for a period not to exceed thirty days. Buyer shall be responsible for, and Seller shall collect, any applicable sales tax unless a valid sales tax exemption form is provided. Freight on this order shall be prepaid and allowed. Seller agrees to obtain insurance to protect the equipment in transit and Buyer agrees to reimburse Seller for such expense. Buyer agrees prices are also exclusive of expenses related to special packaging, storage or unique shipping circumstances, unless specifically noted. 4. Title and Risk of Loss — Title to products shall pass upon delivery and acceptance of such goods to the destination specified to Seller by the Buyer, assuming the goods conform to those ordered, and has not been damaged. Buyer agrees to inspect the goods upon delivery and promptly notify Seller of any problems discovered. If items have been damaged in shipment, Buyer agrees to note such damage on the freight carrier's bill of lading. Seller agrees to promptly replace any damaged or non - conforming goods. 5. Acceptance — All orders are subject to Seller's review with Buyer to be notified in writing of non- acceptance. Our sale to the Buyer is expressly conditioned upon the Buyer's acceptance of these terms and conditions, which together with our written Contract shall apply to govern the Buyer's order. No representation of any kind has been made by the Seller except as set forth herein. This agreement shall be binding on the successors and assigns of each of the parties and shall be governed by and construed in accordance with the laws of Texas, U.S.A. The parties agree to be bound by and subject to the jurisdiction of Texas Federal and State Courts which shall have exclusive jurisdiction over all matters relating to this Agreement. If any term or condition is found to be illegal or unenforceable, the balance hereof shall remain in full force and effect. 6. Delivery — Deliverables shall be shipped F.O.B. Destination (Point of Delivery). The place of delivery shall be that set forth in the Purchase Order. Delivery dates are estimates only and cannot be guaranteed. Seller shall not be liable for any total or partial failure to deliver, or for any delay in delivery due to causes beyond its control, including but not limited to acts of God, acts of Buyer, war or terrorism or civil unrest, priorities, fires, strikes, natural disasters, delays in transportation, or inability to obtain necessary labor or materials. Seller shall not be liable in any event for any special, indirect or consequential damages on account of failure or delay in performance caused by actions of the Buyer. DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 7. Termination of Contract - Should Buyer become aware of a material breach in the agreement by the Seller, Buyer shall provide written notice to the Seller with a thirty day period to cure. Should the breach not be cured within thirty days, or should Seller become insolvent or seek relief under the bankruptcy laws of the United States or make any material misrepresentation in Seller's Offer, or in any report or deliverable required to be submitted by the Seller to the Buyer, Buyer can terminate the agreement immediately with written notice to the Seller. Should the Buyer wish to terminate the agreement for convenience, written notice must be given to the Seller, and the Buyer will be responsible for all costs incurred to the date of termination, any restocking fees charged by the Seller's suppliers and a reasonable profit on the work completed. 8. Change Requests - All changes or additions to the original scope of work, including any resulting changes to pricing, shall be agreed to in writing by both parties prior to work being performed. Any changes requested by the Buyer which affect the products being provided or otherwise affect the scope of work to be performed, when accepted by the buyer, may result in changes in delivery schedules, pricing or other terms which might be affected by such a change. Any delay in receipt of necessary information (specifications, drawings, purchase orders, etc.) from the Buyer, may, at Seller's option, be treated as a change. 9. Delays and Storage — As Seller intends on shipping skids and control panels directly from manufacturers or fabricators, requests from Buyer to defer delivery could require additional freight costs to ship the equipment to Seller in order to store. As such, should Buyer desire such a deferral, Seller agrees to store such equipment for up to 180 days provided that: • Buyer shall notify Seller of request for deferral at least two weeks prior to equipment's scheduled delivery date. • Buyer shall pay for the equipment upon receipt of invoice from Seller. • Buyer shall pay for cost to ship equipment back to Seller for storage. • Buyer shall pay Seller a storage fee of $25 /day for storage (to be invoiced once a month). 10. Limited Product Warranty — The equipment being provided by the Seller under this contract is warranted by our manufacturers to be made of first -class materials, and in a skillful and workmanlike manner. They are also warranted against defective materials or workmanship, and they will perform in accordance with the agreed specifications, assuming proper installation, utilization and care. The length of the warranty term shall be 18- months from date of shipment or 12- months from date of startup, whichever occurs first. In all cases, the rules and requirements of different manufacturers regarding their equipment shall apply. The Seller will repair or replace, at its expense, any products failing to conform to the above warranties. The Seller shall not, however, be responsible for removal and reinstallation costs. In addition, the Seller shall not be responsible for the actions of, or costs incurred by, any third parties, owners, or the Buyers in connection with any repairs or replacements of the equipment being provided unless authorized by the Seller in writing in advance. No returns will be accepted without prior written authorization from the Seller. NO OTHER WARRANTIES EXCEPT AS STATED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 11. Indemnification — At the option of the Buyer, Seller will indemnify, defend and hold the Buyer, owners, engineers, and their agents and employees, harmless from and against all loss, cost, damage or expense to the extent arising out of, caused by or resulting from the Seller or its agents' negligence or DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 fault. Conversely, the Seller will not be liable for damages to the extent they are caused by the Buyer, owners, engineers, or their agents or employees. Seller will also indemnify Buyers against any infringement or violation of any patent or patent right, or any intellectual property right claims, arising in connection with this agreement or from the use by the Buyers of any of the materials furnished to it by the Seller, provided such use is in accordance with Engineer's drawings and specification. The Seller shall indemnify and hold the Buyer harmless from and against all adverse title claims to the deliverables. The Seller 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. WAIVER OF CONSEQUENTIAL DAMAGES NEITHER PARTY HERETO, NOR ANY OF THEIR RESPECTIVE AFFILIATES, SHALL BE LIABLE FOR ANY INDIRECT, INCIDE NTAL, SPECIAL, CONSEQUENTIAL OR EX EMPLARY DAMAGES OR PENALTIES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND PROFITS OR BENEFITS. The foregoing statements of indemnification comprise the Seller's complete agreement concerning indemnification and in no way expand upon the Seller's warranty obligations as outlined previously. 12. Reporting Material Claims Against Seller - If any claim, demand, suit, or other action is asserted against the Seller which arises under or concerns the Contract, or which could have a material adverse effect on the Seller's ability to perform thereunder, the Seller shall give written notice thereof to the Buyer within ten (10) calendar days after receipt of notice by the Seller. Such notice to the Buyer 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 Buyer and to the Denton City Manager. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76205. 13. Prohibition Against Personal Interest In Contracts - No officer, employee, independent consultant, or elected official of the Buyer 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 Seller shall render the Contract voidable by the Buyer. The Seller shall complete and submit the City's Conflict of Interest Questionnaire. 14. Compliance With All State, Federal and Local Laws - Seller 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. 15. Recordkeeping — As this contract is to be a fixed price contract, the Seller agrees to maintain copies of invoicing, payment and technical records pertaining to the Contract for a period of five years. A copy of these records will be provided to Buyer within ten (10) business days of a written request. 16. 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 Seller 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 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Seller 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 I% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books" "records" "documents" and "other evidence" as used above shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 17. Insurance — During the performance of the Services under the Agreement, Seller 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 a rating with Best Rate Carriers of at least an A or above: 17.1 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. 17.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 17.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 17.4 The Seller shall furnish insurance certificates or insurance policies to the Buyer evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Buyer as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Buyer, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Buyer and Seller. In such event, the Seller shall, prior to the effective date of the change or cancellation, furnish Buyer with substitute certificates of insurance meeting the requirements of this Article 10. DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 Attachment Contract # 5908 111,11 ... ...... 1111PI II � i�i�iTi1 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E 1 0 I DU 4 EXHIBIT 6 City of Denton Purchasing 901 -B Texas St. Benton, TX 76209 Phone: (940) 349 -7100 Fax: (940) 349 -7302 www.dentonourchasing.com Substitute W -9 Form The IRS requires all vendors to complete a W -9 Form. The information on this form must be filled out, signed and submitted by a vendor representative, All information must be completed before a purchase order or payment will be issued. Name as shown on your income tax return: V Tax ID /Social Security #: all — 1 41 30Gtp 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:SS� _.._.� _m_..... Mailinci Address: Company Name: 'V Y' Email: Contact Name: Website: Address: I_c waq WMI fA aQ V o Check a pro riate box for federal tax classification reftq rer8)m:: Individual/ ❑ Sole Corporation ❑ Partnership Proprietor Must designate C or S X C Exempt ❑ Payee F1 s Phone Number: -t � 9 ` 411 - 13 91 Fax Number ` t -) P - ' to Limited Other ❑ Liability ❑' Please specify: Corporation Business Type: ❑ Real Estate RentalfLease (Al) ❑ Equipment Rental /Lease (A -9) El Royalties (A -2) Medical/Health Care (A-6) Services Only (A- Merchandise- Merchandise & ❑ 7) Goods Only (A -7) 5r Services (A -7) ❑ Legal Firm /Attomey (A -C) Consultant/Prof Proceeds from •-� Fees (A-7) ) l Estate ........................ Pucha es (S) �. __ ....... _ - -�_ Type of Organization: ❑ Minority ❑ Female Owned El Non Profit ❑ 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 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 Vendor Information Not Renuired for W -9 Form Remit Address (if different from above) ACH Information- Vl!oluntary Company Name: ABA Routing #: Vt0 1101375 Contact Name: Contact Name: Address: Bank Account# Bank Name: ACH Email: Email: ACH Email: Phone Number: Phone Number: Fax Number: l' r Fax Number: 41 % -q�j — tgco 3 List Products and/or Services Interested in Bidding: For Internal Use Only ❑ New Vendor ❑ Vendor Change ❑ Refund Requesting Department: Department Representative (Printed Name) Purchasing Signature: Vendor Number Film Date 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,_ trt'.J Print Name /Title I (JS 4 ioJ F' 1.� Date W COD Page 2 9/2312011 DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 • 1 � � I MM- I 1� DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 VERDE -2 OP ID: JD ACORO" DATE (MM /DDrNYY) CERTIFICATE OF LIABILITY INSURANCE 08/27/15 ._ .... 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 policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(S). N ACT PRODUCER Phone: 781-749-4310 NAME, ,E-MAIL " ........ FA i , . „ Walter J. M Ins. Agcy.,lnc. PHONE Fax: 188 Whltin tree( WC, N9, gx!) ; , ... (kCNo) _ ..., e Hingham, A 020139840 COste ADDRES,� _ INSURDR(S),A ffgRDING COVERAGE NAIC # INSURER A: Hanover Insurance Company 22292 INSURED Verder Inc..... . . ..... 110 Gateway Drive INSURER B:Zurich Group Macon, GA 31210 INSURER C: INSURER D INSURER E: COVERAGES CERTIFICATE NUMBER: 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. INSR '...DUL SUBR POLICY EFF.... &TOR.IN i'r7iP LIMITS I.,TR TYPE OF INSURANCE POLICY NUMBER MIDDfYYYY„�, HNIMPDDPSI"YYY GENERAL LIABILITY EACH OCCURRENCE $ IGLO1009222 1,000,000 DA,hJkr�GE'T RENTED ..... B X CnMMERC AL GENERAL LIABILITY 10/01114 01/01/16 PRI =MS Lcs (I ..n currorbc) $ 100,00 �.....,I CLAIMS -MADE X OCCUR MED EXP (Any one person) $ 5,00 PERSONAL & ADV INJURY $ 1,000,000 'GENE RALAGGREGATE $ 2,000,000 .................. GEN'L AGGREGATE LIMIT APPLIESPER: PRODUCTS- COMP /OPAGG $ incliuded f T�C�;� $ X POLICY LOC 7s0 AUTOMOBILE LIABILITY COMwNED SBNr,I 4 L @M T (Ee�..Feutdeii. .. ...,,,....., ,,,,,,,,,,,,,,,,,,,,_. � 1 000 OO A ANY AUTO ABNA51776600 01/01/15 01101/16 BODILY INJURY (Per person) $ . ALL OWNED SCHEDULED ,,,,, BODILY (Per accident) $ , AUTOS AUTOS [3 A NON -OWNED PR /;tlgd 8U UI: $ X X _,,,,,, , HIRED AUTOS AUTOS (PPr cPida rtl) $ UMBRELLA LIAB C OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ uN DED RETENTION$ $ WORKERS COMPENSATION WC STATU- OTH- X...... TORY LIMITS AND EMPLOYERS' LIABILITY A ANY PROPRIETOR /PARTNER /EXECUTIVEY HNA52167400 01/01/15 01/01116 EL. EACH ACCIDENT $ 1,00000 OFFICER /MEMBER EXCLUDED? — ..... NIA (Mandatory In NH) E.L DISEASE - EA EMPLOYEE; 1,000,00 If yes, describe under DESCRIPTION OF OPERATIONS below EL DISEASE - POLICY LIMIT $ 1,000,00 A Property Section TO BE ASSIGNED 08/27/15 08/27/16 Inland Ma 200,00 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) Additional insured, all coverages except Workers Compesation, City of Denton Texas and waiver of subrogation included on Workers Compensation as required by written contract with named insured. 30 day notice of cancellation, except 10 days for non - payment of premium, included in favor of additional insured subject to individual state requirements. CERTIFICATE HOLDER CANCELLATION DENTON1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City Denton Texas THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN of y ACCORDANCE WITH THE POLICY PROVISIONS. 901B Texas Street Denton, TX 76209 AUTHORIZED REPRESENTATIVE d ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 p VERDE -2 OP ID: JD A C/� DATE (MM /DD/YYYY) CERTIFICATE LIABILITY I 08/27/15 _ . ...... ..................... ...._. ............... 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 policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). tSN rACr PRODUCER Phone: 781- 749 -4310 NAME; Wafter J. May ins. Agcy,,gnc• t�rtoNe FAX ...... 188 Whwtin Street Fax: (A)C No, Ext), ......... (A/C, No): Hingham, A02043-9840 E IwWAII.. Joan DeCoste APPPE s;_ m .......... INSURER(S) AFFORDING COVERAGE NAIC p _ _,.. - .... Company INSURER Hanover Insurance Com an 22292 INSURED Verder Inc INSURER B Zurich Group 110 Gateway Drive �.......,,... _ Macon, GA 31210 (NSURERc INSURER D: INSURER E: COVERAGES CERTIFICATE NUMBER: 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. YLTR ...... , ........, TYPEOFINSURANCE ,,,,,,. .. ' SR UfVEnk ",,,,,,,,,, . POLICY NUMBER . ,. „. ,. iMMIDtDIIY�Y(%....... MM /DOIYYYY LIMITS rR ......... ...... GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 15AMAGE TO VENTED' B X COMMERCIAL GENERAL LIABILITY GLO1009222 10/01/14 01/01116 PREMISES (E ur arrearrn). $ 100,00 CLAIMS -MADE I X] OCCUR MED EXP (Any one person) $ 5,00 ......... PERSONAL &ADVINJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'LAGGREGATELIMITAPPLIESPER: PRODUCTS- COMPIOPAGG $ Incliuded X � POLICY I'R4;3- LOC AUTOMOBILE LIABILITY COMBINED S0 LL I IT (G:a „[Cidr n't[......._.. $ ' ....... 1,000,000 • ANY AUTO ABNA51776600 01/01/15 01/01/16 BODILY INJURY (Per person) $ ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ NON -OWNED PROPERTY DAMAGE X X_ $ HIREDAUTOS AUTOS (Peraccidenl) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS UAB CLAIMS -MADE AGGREGATE $ .1 DFD RETENTION $ '. $ WORKERS COMPENSATION 1H- TONY (IA'IITS FR AND EMPLOYERS' LIABILITY ,X • ANY PROPRIETOR /PARTNER /EXECUTIVEY /N HNA52167400 01/01/15 01/01/16 EL EACH ACCIDENT $ 1,000,00 OFFICER /MEMBER EXCLUDED? ❑ N/A ' ' "' "` tl (Mandatory In NH) E L DISEASE - EA EMPLOYEE$ $ ”" ” " " "" ' """"' " 1,000,00 If yes, describe under DESCRIPTION OF OPERATIONS below E L. DISEASE - POLICY LIMIT $ ............. _____.mm...�� ..—_— ........�. —.. 1,000,00 A 'Property Section TO BE ASSIGNED 08127115 08127116 Inland Ma 200,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) -. Additional insured, all coverages except Workers Compesation, City of Denton Texas and waiver of subrogation included on Workers Compensation as required by written contract with named insured. 30 day notice of cancellation, except 10 days for non - payment of premium, included in favor of additional insured subject to individual state requirements. CERTIFICATE HOLDER CANCELLATION' DENTON1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Denton Texas THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 901 B Texas Street Denton, TX 76209 AUTHORIZED REPRESENTATI��V //E�� ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 gxtr.rlm �& Contract # 5908 Conflict of Interest DocuSign Envelope ID: 7F447DEB -3C38- 4972- 8B54- 4000DFC1250E EXHIBIT 6 CONFLICT OF INTEREST Q.�� W. ��. �- �.IT....�... E QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local o�mental 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. I .. Nf ame o person who has a business wit h local try ,rw�t,rtzl entity, tyw _ .............. r __..... _ �.........._ .. 2 Check this box if you are fining 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 Vh business day after the date the 3 Nam, of local government oftcer with whom filer has an��employment or 1 ' y %u business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes El No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El, Yes E:1 No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? El Yes El No D. Describe each affiliation or business relationship. _ ... .... _ ....... ....... .. - -_,.- 4 I have no Conflict of Interest to disclose. raft nndture i" ,rs 1 doing h° vrith the governmental entity Date City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -731, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, amending the City's Fund Balance Policy; and providing an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND The City adopted a formal fund balance policy in order to meet the requirements of Governmental Accounting Standards Board (GASB) Statement No. 54 - "Fund Balance Reporting and Governmental Fund Type Definitions" on September 20, 2011. This policy was necessary to meet the new requirements of GASB Statement No. 54 and additionally set fund balance targets for the City's General Fund as well as working capital and rate reserve targets for the City's utility funds. The policy was amended on September 10, 2013, to establish rate reserve ranges for the Electric Fund (8% - 12 %), the Water Fund (12% - 16 %) and the Wastewater Fund (17% - 25 %). This item is being presented in order to consider a change to the rate reserve target set for the Solid Waste Fund. No other changes to the Fund Balance Policy are proposed. In 2011, the policy set a minimum rate reserve target of 4% of expenses for the Solid Waste Fund. The attached revised policy would make the following change to the rate reserve level for the Solid Waste Fund to set a range instead of simply a minimum: 0 Solid Waste Fund - range of 4% to 8% The rate reserve levels vary based on the operational characteristics of each utility fund. The proposed rate reserve level for Solid Waste is consistent with the funding parameters that have been discussed with the Public Utilities Board (PUB) during the development of the FY 2015 -16 Budget. The new reserve range is proposed in the FY 2015 -16 Proposed Budget under reserve levels within the utility funds. RECOMMENDATION Staff recommends that the City Council approve the fund balance policy which is incorporated into the attached ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 9, 2015, the Public Utility Board received a presentation on proposed changes the utilities' City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -731, Version: 1 financial strategies, which included Solid Waste's rate reserve level. On June 22, 2015, the Public Utility Board unanimously recommended approval of the utilities' financial strategies, which included Solid Waste's proposed rate reserve range of 4% - 8 %. EXHIBITS 1. Minutes from February 9, 2015 and June 22, 2015, Public Utility Board Meetings 2. 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 9/10/2015 MINUTES PUBLIC UTILITIES BOARD February 9, 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, February 9, 2015 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Absent: Barbara Russell Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities CLOSED MEETING: A. CONSULTATION WITH ATTORNEYS - -- Under Texas Government Code Sec. 551.071 1) Receive a briefing from the City's attorneys regarding pending litigation entitled: Linda Marie Casias Roth, et al., vs. City of Denton, Texas, Cause No. 2012- 60839393, in the 393rd Judicial District Court of Denton County, Texas. Discuss, deliberate and provide direction. B. CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS - -- Under Texas Government Code, Sec. 551.086; and CONSULTATION WITH ATTORNEYS - -- Under Texas Government Code Sec. 551.071 1) Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding support, implementation and operation of its Energy Risk Management Policy that deals with bidding and pricing information for purchased power, generation and fuel, and Electric Reliability Council of Texas (ERCOT) bids, prices, offers and related services and strategies. Consultation with the City's attorneys regarding legal issues associated with the Energy Risk Management Policy where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any potential litigation. Discuss, deliberate, and provide staff with direction. Minutes of the Public Utilities Board Meeting February 9, 2015 Page 2 of 8 OPEN MEETING: CONSENT AGENDA: 1. Consider recommending approval of Project Utility Adjustment Agreement (PUAA) 35E- U0503 between the City of Denton and AGL Constructors for the adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. 2. Consider recommending adoption of an Ordinance approving an Encroachment agreement between the City of Denton and RLB Investments Partners LLC that will allow the encroachment of private improvements within a Public Utility Easement recorded in Volume 2132 Page 21, Deed Records, Denton County, Texas and a Variable width Utility Easement recorded by County Clerk File number 2014 -71, Plat Records, Denton County, Texas situated in the William Neil Survey, Abstract No. 971, Denton County, Texas; and declaring an effective date. 3. Consider recommendation of an ordinance of the City Council of Denton, Texas authorizing the City Manager to execute "Project Utility Adjustment Agreements (Owner Managed)" from TxDOT- CDA- U- 35 -OM -IH 35E; and "Utility Adjustment Agreement Amendments (Owner Managed)" from TXDOTCDA- U- 35A -OM -IH 35E; facilitating and authorizing Electric Utility relocations for the Interstate Highway 35 Project, in substantial conformity with the attached two numbered Texas Department of Transportation agreements; with the Developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction CO. and the Lane Construction Company; and the Texas Department of Transportation; authorizing the expenditure of funds therefor. Motion was made to approve items 1 through 3 by Board Member Cheek with the second by Board Member Robinson. The vote was 6 -0 approved. ITEMS FOR INDIVIDUAL CONSIDERATION: 4. Consider recommending approval of the Public Utilities Board Meeting minutes o£ a) January 26, 2015 Approved as circulated with clarification 5. Receive a report, hold a discussion, and give staff direction concerning the revised Utilities Financial Strategies document. Dr. Kenneth Banks, Env Srvcs & Sustainability Dir, gave the PowerPoint Presentation. Banks stated that in the last budget cycle staff proposed bringing this item to the Public Utilities Board Minutes of the Public Utilities Board Meeting February 9, 2015 Page 3 of 8 at the beginning of each budget cycle. Staff has talked with this Board for many years about financial strategies. The formal document was developed during 2011 and adopted as part of the budget. This document was not changed for several years. Substantial revisions were presented to the PUB on February 10, 2014. This document serves as a guide for policy / management decisions and intended to improve fiscal performance and resiliency. Following the 2014 -15 budget, staff revised the document and added Solid Waste and Recycling Services, added text to document $1 million drainage reserve, added a proposed addendum for performance metrics and edited to improve the readability. Staff also had a lengthy discussion about the water and wastewater reserves and compared the current reserves to some of the additional information from American Water Works Association. Banks brought back the current American Water Works Association information. Recall they started looking at this idea of reserves back in 2011. Their 2012 document is out now which is the most current. Much more information for benchmarking and reserve quantities are included. The objectives are similar to last year. There have been minor editorial changes and two specific objectives for Solid Waste and Recycling. Each fund should operate as a self - supporting business operation through balanced revenues and expenditures. Rates are based on cost of service and other financial and pricing objectives; they are reviewed annually by staff, and are supplemented by external consultant studies at approximately five year intervals. To the greatest extent possible, rates should be incrementally adjusted to achieve revenues targets over multiyear periods in order to minimize the need to have large annual rate increases / rate spikes. Financial policies will ensure to the greatest extent possible that inter -rate class subsidies are minimized or eliminated. Rates should be competitive, and competitiveness should be routinely assessed as part of the budget process. Utilities will maintain reserve fund levels, with targets specific to each utility, to ensure finances are both balanced and resilient. Water and Wastewater should maintain a development plan line reserve of $1 million for local economic growth in accordance with City Council resolution R91 -008. Water and Wastewater should maintain separate impact fee reserve funds of not less than $1 million and use these funds to offset debt service payments on impact fee eligible projects. New objectives that were added by Solid Waste & Recycling should continue funding the Landfill Closure & Post - closure Fund to meet Texas Commission of Environmental Quality financial assurance requirements. Solid Waste and Recycling should continue to strategically use the Vehicle Replacement Fund to increase cash funding of collection trucks and reduce the Funds use of debt financing. Water and Wastewater have system capital and reinvestment policies that have been in place. Those have been formalized in the utility financial strategies and have remained unchanged since last year. The city is getting close on small lines and plants. The larger lines are making progress towards the financial strategy goals and getting closer incrementally each year. Debt management, pro formas, forecasting and revenue section is unchanged for water, wastewater and DME. Solid Waste and recycling has been added to the reserve section. The current proposal in the financial strategies document is for a range on solid waste and recycling of four to eight percent on the operating reserve. The current fund balance policy manual which was adopted in September 2013 has a single minimum value of four percent. With the Board's Minutes of the Public Utilities Board Meeting February 9, 2015 Page 4 of 8 direction staff will pursue changing the value in the fund balance policy document from four percent to a range of four to eight percent. In terms of research for reserve targets, staff had done a lot of work with the AWWA study. Staff also looked at a financial document that was put out by the "Fitch Ratings Group called U.S. Water and Sewer Revenue Bond Rating Criteria, July 2013 ". The 2012 Benchmarking Study is the same arrangement from the 2011 information. The information is reported in terms of quartiles. The median means half of the group had a value of less than the median value and half had more. The national and regional data was shown on a graph. To compare the 2011 and 2012 data on the national and regional basis, it is noted that the trend that has been observed over the last several year appears to be continuing. On all of the quartile reporting ranges there is an increase of varying magnitudes from 2011 to 2012. In terms of Fitch's Rating Comparison, there isn't a score or metric. They have stronger, midrange, and weaker based on the criteria that is being looked at. Days of cash reserve and working capital criteria, three months or less Fitch would consider in the weaker range. Mid range they consider six months to one year and stronger would be one year or more. Looking at the cash reserve summary Banks has added the 2011 and 2012 AWWA National and South Region. Denton's wastewater top of the range is 90 days. Denton's water top of the range is 120 days. Denton Wastewater reserve maximum is below the bottom 25% range for AWWA nationally (90 vs 118) and regionally (90 vs 156). Current WW maximum is "Weaker" using Fitch Ratings scale. Denton Water reserve maximum is slightly above the bottom 25% nationally (120 vs 118 days) but is below the bottom 25% regionally (120 vs 156 days). Current Water maximum is considered slightly better than "Weaker" but below "Midrange" using Fitch Ratings scale. Currently staff has an outside consultant, Burton and Assoc., looking at the rate study. This happens about every five years. That should be finalized and have a report to this Board in April. The performance metrics is a revised document that contains an addendum with proposed performance metrics and sources for benchmarking. If this is deemed useful, this can become a permanent section. The intention is to begin tracking metrics and provide the results to PUB during the budget process. Each utility is unique and benchmarking needs to consider each utility's specific characteristics. Not all metrics will apply to each utility, and some metrics may turn out to be of limited usefulness. Metrics should be routinely evaluated, and added, modified or eliminated as needed. By tracking trends, and assessing metrics against benchmarks, Denton can make more informed management decisions. The proposed performance metrics include cash reserves, current ratio, customer accounts per employee, debt ratio and debt service coverage ratio. Also included are employee turnover, O &M cost per account, O &M cost per mile of pipe or transmission distribution lines, retirement eligibility and the top ten customers as a percent of operating revenue. Banks stated that there is a number of ways to benchmark. Board Member Cheek didn't remember any bond deficiencies in the budget last year or previously. There is talk about moving the reserves up because we are on the weaker side. Minutes of the Public Utilities Board Meeting February 9, 2015 Page 5 of 8 Years ago the thought was to bring the reserves down and they come back from time to time. What is the reason for the change in philosophy. Banks answered that the bond ratings are for the City as a whole versus the individual bond rating of the utilities. Brian Langley, ACM, stated that we use the City's overall credit rating when we issue bonds, that is AA or AA +. If you just look at the utilities as a whole it is slightly lower at AA -. It is still a very high rate. This is a component of the rating that would be the reserve levels and were they are. On those scales we are on the lower quartile. City Manager Campbell added it is only one component, Langley agreed. Gallivan stated that the standards have increased that has moved us down on the quartile. Gallivan is curious on the top quartile and who they are or where they are. They could have other risks that we do not have. Banks believes that to be correct. They do not provide the individual respondent information in the AWWA, just the number of people that responded. Staff has taken the national data and compared it to the south region which includes Texas. Generally what you see for the days of cash reserves information is the south region tends to be higher than the national. One reason could be the idea that this area gets great precipitation swings year over year which has an influence on water and wastewater rates. Robinson stated there would probably be more reserves if you are not growing as fast. Martin added that the important thing about the document is there have been financial objectives ten years ago but were not documented very well. About four or five years ago staff tried to put them in writing and document those financial objectives. The performance metrics are the next step for us and is the part staff is proposing to add. When all is comfortable then it will be added to instead of being an addendum. Those metrics will be reviewed and evaluated. 6. Receive a report and hold a discussion regarding the Water and Wastewater Forecasts for FY2015 -16 Annual Program of Services and the FY2016 -20 Capital Improvement Plans. P.S. Arora made the presentation for water and wastewater. Arora stated that staff has decided to be conservative on the forecast. There was a slight lag in growth last year. There will be a modest increase over time for residential and commercial. Historical and projected water production had a decrease last year from the normal. A normal year is 37 inches of rain, with a dry year at 27 inches and a wet year at 47 inches. Normal production was at 19 MGD for last year and the actual was at 16.9 MGD. There was a large rain in the summer which caused people to reduce watering and made production lower. That is a huge impact for the water department. The peak day production was 31.7 MGD in 2013, normal peak is 35.3 MGD. Arora stated that the projections for the years are good; the weather is volatile which makes a big difference. With the new plant expansion there will be no need for further expansion for many years. Raw water right and requirements are stable at this point. The City of Denton takes effluent water and releases it back into Lake Lewisville and receives credit for that. Arora finished by saying the water department is volatile during the summer months because of the weather. Minutes of the Public Utilities Board Meeting February 9, 2015 Page 6 of 8 Gallivan questioned that with the new water plant the capacity would go to 50 million gallons. Arora answered that 20 million gallons capacity was added, which would make approximately 49 million gallons capacity. Martin added that the improvements at the Lake Lewisville plant really didn't add any capacity it was for regulatory purposes and plant up keep. Arora then talked about the wastewater side of utilities. Growth projections are modest going forward. Growth in the flow is also modest going forward. Arora then talked about the flows that made it to the plant. There is about 15 MGD that has made it to the plant. This shows that the Inflow and Infiltration that comes into the sewer lines during rain fall is being contained. The peak goes down quickly and doesn't stay long. The Clear Creek WRP shows to come on -line somewhere in the 2027 time frame; it is tied to the Hills of Denton. There is an entity that is looking into purchasing all of the property from the current owners. Initially a lift station will be constructed and pump the flow into the existing plant. That will be at their cost. Arora then showed the plans based on slow growth of three percent. The wastewater plant has to contend with normal flows and peak flows during rainy times. Staff does modeling through a computer model and it shows that a peak flow during a five year storm. Staff is planning on putting a detention facility in that is seven million gallons storage with about 16 MGD pumping capacity. When the high peak comes it would be stored. There is an area that is coming out of flood plain and that is where the detention pond will be constructed. There will be a submittal to FEMA soon. There is another basin that is the Hickory Creek Detention Facility; this Board already approved that facility. As long as we can contain or store the flow, the plant will not have to be expanded. Robinson asked why WRT projects for population are so high. Arora answered their calculations were on Texas growth at that time not sure if any of that will hold. In 1998 the planning department had hired a consultant and worked to get the population numbers. The 2000 population was projected for 2020. It is very hard to gauge. Martin added that the importance of forecasting is not only to look at the Capital Plan but the numbers will translate into not only Capital Plan but budget as well. This is the basis under which we will go through the Capital Planning Process and budget planning. 7. Receive a report, and hold a discussion regarding the status of Denton Municipal Electric's Capital Improvement Projects. Howard Martin reminded the Board that at the last meeting there were documents handed out about the Capital Projects. Brent Heath will talk about those today. Heath started by saying DME gave a presentation on September 8, 2014 and this information will be an update. Heath then introduced Aaron Fricke from Freeze and Nichols. Fricky stated they put together the executive dashboard to give the leadership team a view of what is going on in the program. Currently about 20 projects are being managed and are in four different phases. Those phases are site selection, land acquisition, permitting and construction. With the dashboard staff can see where all their projects lie in the different phases. To give DME planning abilities Freese and Nichols has estimated the next two years worth of energizing dates. Schedules constantly change, if things so slower in site selection or land acquisition, the Minutes of the Public Utilities Board Meeting February 9, 2015 Page 7 of 8 energize dates would be pushed out. If the first phases go faster the energize dates could be sooner. This dashboard is updated on a regular basis. Anytime you get more than two years out it is more of a guess than actual. In 2015 the numbers are very accurate on what will come on line during the year. There are a lot of contracts that are being managed from a dollar standpoint as well as a time standpoint. Normally money runs out before time does. It takes about nine months to get a project through all the steps to secure a contact to renew it. That is why forecasting is very important. Fricke then showed a table with all the projects that are currently being worked on. There was a list of projects for the next five to six years which includes substations, transmission lines and upgrades. There is a timeline that is being followed. Heath pointed out that there is over a thousand line items, each of the projects have many line items. The chart shown really just shows the timeline for each. These reports are monthly. Fricke then showed a chart with the projects and showed how long they are expected to be in each phase. This shows from a planning standpoint on how to utilize the resources and not over extend any area. 8. ACM Update a. Update Air Quality Report b. Electronics Recycling Awareness Campaign 9. Discussion of the Matrix representing items for discussion for future Public Utilities Board meetings. No Changes 10. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the Public Utilities Board 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 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. Adjournment 10:45 a.m. Minutes of the Public Utilities Board Meeting February 9, 2015 Page 8 of 8 GJJXA t . --___. Richard E. Smith, Chair 4- W'. � Administrative Supervisor i r Howard Martin, ACM Utilities MINUTES PUBLIC UTILITIES BOARD June 22, 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, June 22, 2015 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Phil Gallivan, Barbara Russell, and Lilia Bynum Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Secretary Randy Robinson and Charles Jackson CLOSED MEETING: A. CONSULTATION WITH ATTORNEYS - -- Under Texas Government Code, Sec. 551.071. DELIBERATIONS REGARDING REAL PROPERTY - -- Under Texas Government Code, Sec. 551.072 1) 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. 2) 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 Minutes of the Public Utilities Board Meeting June 22, 2015 Page 2 of 9 Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Atmos Lake Dallas Storage Facility). 3) Receive information from staff, discuss, deliberate, and provide staff with direction relating to the site selected for the DME Hickory Substation and the acquisition of real property interests. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests in the 100 block of N. Bonnie Brae St., Denton, TX 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] B. CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS - -- Under Texas Government Code, Sec. 551.086 1) Receive competitive public power information and competitive financial information from staff in the form of the draft operating budget for Denton Municipal Electric ( "DME ") for FY 2015 -2016, including without limitation, revenues, expenses, and commodity volumes; and discuss, deliberate, provide staff with direction regarding such matters, consider and make a recommendation regarding approval of the FY 2015 -2016 DME operating budget OPEN MEETING: CONSENT AGENDA: 1. Consider recommending approval of the Scope of Work and Cost Proposal from Hazen and Sawyer engineers for the final design of the Hickory Creek Basin Peak Flow Detention Facility in the amount of $427,368. 3. Consider recommending approval of a contract with Physical Systems Integration, LLC ( "PSI) of The Woodlands, TX for consulting services in the re- design of DME's NERC CIP compliance program in an amount not to exceed $87,000. (RFP 45809) Motion was made to approve items 1 and 3 by Board Member Gallivan with the second by Board Member Cheek. The vote was 5 -0 approved. 2. Consider recommending approval of Utility Adjustment Agreement Amendment (UAAA) 001 for Project Utility Adjustment Agreement 35E -U -0503 in the amount of $447,853.65 between the City of Denton and AGL Constructors for the adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Minutes of the Public Utilities Board Meeting June 22, 2015 Page 3 of 9 Board Member Gallivan pulled item 2 for a question. He asked if this would be a recurring need to come up with cash to pay AGL for their work on the highway, or is this a onetime thing. Frank Payne, City Engineer, answered to the best of his knowledge this is the only betterment that will have on this project. This is for upsizing the raw water lines across I -35E. The actual amount of the agreement is about $2.9 Million. Motion was made to approve item 2 by Board Member Gallivan with the second by Board Member Cheek. The vote was 5 -0 approved. ITEMS FOR INDIVIDUAL CONSIDERATION: Chair Smith introduced item 411 to go next. 11. Receive a report, and hold a discussion regarding the 2015 Texas State Legislative Activities of the City of Denton during the 84th Texas Legislative session, including status of Legislative efforts related to Denton Municipal Electric. Phil Williamson, General Manager DME, introduced Curt Seidlits and Snapper Carr from Focused Advocacy. Seidlits stated that he and Carr represented DME as well as the City of Denton and TMPA. They will give a brief Legislative overview. They will talk about electric issues that were forecasted for the 84th Legislative Session. They will review the bills debated, passed and defeated this session. Review and discuss upcoming interim issues and answer questions. Seidlits stated that a great resource for reading bills is to go to Texas Legislature on line. Carr then stated that there was an active session for municipally owned utility interests. There were many bills aimed at cities as well and a great deal of discussion about local control. There were 6,476 bills filled, total number of bills passed were 1,329. The number of city — related bills introduced were 1,900 +. Governor Abbott had 42 total vetoes this session. There were a couple bills vetoed that included an ethics bill that was high profile. Abbott cut about $300 Million from the State budget with regards to the line item vetos. All of the Municipally Owned Utility (MOU) that were being tracked were signed. The bills that were not signed become law without his signature and most will go into effect in September. Carr then mentioned the senior member representation that included Tan Parker, Chair of the Republican Caucus; Myra Crownover, Chairwoman; and Senator Estes, Vice Chair of the Committee that oversees Electric Utility issues. Minutes of the Public Utilities Board Meeting June 22, 2015 Page 4 of 9 Seidlits then talked about what they had forecast for the last session. There were many general industry issues that are always on the forecast. The MOU issues include: governance issues, general fund transfers, outside city rate payers and TMPA. The bill for discounts (schools and universities) never materialized this session nor did the smart meters. Carr stated that the bills that really came about were as a result of the Public Utility Commission (PUC) scope of competition report. This year this report was paid attention too. There were bills regarding authority to review new DC ties with a public interest finding. Clarification of the criteria when reviewing CREZ like transmission projects. CCN requirements for transmission lines built by a MOU outside of its service area. Enumerate further requirements for certification and enforcement regarding retail electric providers that have previous violations. DME's Legislative goals were in line with most MOU's. Those goals include support the concept of "local control" as it relates to the public power regulatory structure. Oppose any form of unfunded state or federal mandate. Defend DME's ability to participate in the wholesale electric market in the interest of serving our customer base. Maintain a position of relevance in the Resource Adequacy conversation. Tell DME's story in committees of jurisdiction where strategic opportunities present themselves. Align DME strategically with our industry associations as an advocacy resource and take a leadership role in outreach efforts. DME took a proactive approach this session. They held Legislative Briefing prior to the 84ffi Legislative Session with key members and staff. Introduction of key DME personnel and city officials to legislative members and staff was very important. Worked closely with TPPA personnel and other association members (Phil Williams served in key association positions). DME is thought of highly mainly because some of the steps they have taken with renewal energy. Prepared and submitted testimony before legislative committees and approached and worked with interested stakeholders. DME issues mainly include MOU deregulation. The Key Committee in the House is the State Affairs which hears most of the electric bills. The Key Committee in the Senate is the Natural Resources and Economic Development for electric issues. Denton did not have any members on the State Affairs. On the Senate there was Bob Hall as well as Senator Estes. Carr added that Senator Fraser, Chair, the day after session announced he would not be seeking re- election. There will be a new Chair which can change the tone of how you deal with electric issues. Chairman Cook will have a serious reelection race. There is not a lot of experience. There are nine house members and two senators that have announced they will not return. Minutes of the Public Utilities Board Meeting June 22, 2015 Page 5 of 9 Seidlits stated that the TMPA Legislation 2018 plan was the biggest `lift' of the session. That is the legislation that sets the parameters and gives initial authorities to the board and to the cities regarding the dissolution or continuation of the TMPA in 2018 when most or all the debt except for on the transmission side is paid off. There are some key dates in 2016 when the four cities (Garland, Greenville, Bryan and Denton) have to make certain decisions. That is their use of power, and longer term contracts. Seidlits stated he was happy to report that the Legislation except for one change in a subsection actually passed the House twice and the Senate twice. What started out as SB 745 and HB 1926 ended up SB 776. It ended up working to our advantage. Carr mentioned that SB 776, the PUC drove the components of that item. The requirement for MOU's to get CCN's in situations outside of the city limits and service area, and some payment in lieu of taxes matter. Ultimately what that bill encompassed became a pretty omnibus municipally owned utility related bill. There were a lot of other stakeholders that had an interest. Seidlits added that although there are increased requirements for building transmission outside of the service territory and outside of the municipal boundaries there is actually a six year transition period. Carr stated on the TMPA Legislation that the outside entities with the most interest were the other transmission providers around the state. Seidlits added that Austin Energy actually drive a lot of the issues. Some of the same issues will be faced again in the next session. There is a movement in Pedernales Electric Co -op to open up to competition. It is the largest Co -op in the country. Carr added that the discussion on municipally owned utilities and their role in the bigger system has been being driven by discussion out of Austin. From south of Waco to south of San Antonio on the I -35 corridor that area is served by public power. It is an attractive market for some of the investor owned electric companies. This is something that will need to be watched and discussed. Carr has been representing local governments for over 20 years; this session was by far the most difficult in terms of the continuousness at the start. A great number of the new members of the legislature wanted to attach cities unfortunately for being folks that are interfering with the exercise of liberty. There were a lot of bills that preempted aspects of things that use to govern local affairs. That doesn't just stop with relation to City Hall functions. There were some pretty terrible ideas that were put out from Carr's perspective, at the end of the day ultimately while the members were being educated and advocated positions the bad ideas didn't become law. For the most part the detrimental aspects did not become law. Carr then talked about HB40 Oil and Gas Regulations. This was one of the most high profile issues of the Legislative Session as a whole. The Governor discussed this in his State of the State speech, in the first policy initiative to deal with the aspect of where the line is drawn for Minutes of the Public Utilities Board Meeting June 22, 2015 Page 6 of 9 local authority and state authority for oil and gas operations. It became clear to TML and others that some major piece of legislation was going to pass. The Governor said if this had not passed, a special session would have been called to deal with it. Seidlits stated that one thing they try to do it to try and be ready for the issues. They are recurring issues and will continue to be ready for them. Educating the members will be very important. Most of them were not there when the market was deregulated. The next four years will be a struggle for municipal power in this state. Carr added that here was one issue that they didn't forecast or as an industry think about. Senator Hall drove the discussion on the grid issue as it relates to electric magnetic pulses (EMP). It became a hot topic in some quarters about what the industry was doing with regards to potential protection; there will be some interim study topics on that issue. Seidlits stated that fund raising begins today (June 22). The added fun is to watch presidential primaries as well. Education for the members is key. Carr thanked the Board and stated that staff is tremendous in Austin. Credibility walking in goes along way with the other MOU's. Smith asked what happened to Frazier's idea on eliminating wind credits. Seidlits stated it failed, it was SB 931. It started out as a PUC recommendation to change the criteria for evaluating new projects and he also put in to do away with standards but ended up failing. Carr added it did not have as much support in the House Committee. Smith asked if they expect it will be back. Both Seidlits and Carr agreed it would be back. There was some discussion. Board Member Gallivan left during this item. 4. Consider recommending approval of the Public Utilities Board Meeting minutes o£ a) June 8, 2015 Approved as circulated 5. Consider recommending approval of the FY 2016 -2020 Electric Capital Improvement Plan (CIP). Smith added that Williams is available for questions. There were no questions. Motion was made to approve item 5 by Board Member Cheek with the second by Board Member Bynum. The vote was 4 -0 approved. Minutes of the Public Utilities Board Meeting June 22, 2015 Page 7 of 9 6. Consider recommending approval of the FY 2015 -2016 Water operating budget and the FY 2016 -2020 Water Capital Improvements Plans (CIP). Fisher was available for questions. Board Member Russell asked if the Sabine River authority would impact the City of Denton. Fisher answered he did not see it affecting the water supply contract other than the pricing. That is in the pricing now, when staff became aware of it, it was a 48 percent increase. It was brought into the budget that is the only adjustment that was made. That will come out of reserve; it will not change the recommendation on the rates. Russell then asked if Dallas is successful in getting a lower rate, can the City do anything about our agreement with them. Fisher answered that our agreement with them will refer to their posted wholesale rate. If they are successful in managing their cost and lowering their rate, the City will benefit. Right now only component is the readiness to serve which is �/2 MGD. When the contract is renewed it could be different. The impact to the budget currently is not that significant. Motion was made to approve item 6 by Board Member Russell with the second by Board Member Cheek. The vote was 4 -0 approved. 7. Consider recommending approval of the FY 2015 -2016 Wastewater operating budget and the FY 2016 -2020 Wastewater Capital Improvements Plans (CIP). Arora was available for questions. There were no questions. Motion was made to approve item 5 by Board Member Bynum with the second by Board Member Cheek. The vote was 4 -0 approved. 8. Consider recommending approval of the proposed Fiscal Year 2015 — 2016 Solid Waste & Recycling Services Operating Budget and the Fiscal Years 2016 — 2020 Capital Improvement Program (CIP) Budget. Kemler was available for questions. There were no questions. Motion was made to approve item 5 by Board Member Cheek with the second by Board Member Russell. The vote was 4 -0 approved. 9. Consider recommending approval of the FY 2015 -2016 Utilities Financial Strategies document. Banks stated this is the same item that was brought to the PUB on February 9. It is identical to the Financial Strategies that have been discussed. This item in the past has been Minutes of the Public Utilities Board Meeting June 22, 2015 Page 8 of 9 considered by proxy approval as a part of the budget process. This year it has been brought forth as a separate item for formal approval for any questions or discussion. Motion was made to approve item 5 by Board Member Bynum with the second by Board Member Russell. The vote was 4 -0 approved. 10. Consider recommending approval of the Early Release for Construction package for Utility Adjustment Agreement Amendment 35E -U- 003 -002 (UAAA 002) for Project Utility Adjustment Agreement 35E -U -0503 between the City of Denton and AGL Constructors for the adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Frank Payne, City Engineer, showed a map of this item. The lake levels at Lake Lewisville have prompted this item. The bridge construction was going along well then the rain started and brought that construction to a halt. There are no provisions for weather delays in their contract so they have approached staff for some help. They have prepared plans for the relocation for the Water and Wastewater utilities between Post Oak bridge and Hwy 380. The map shows the demolition work facilities that are in the right of way. It is fairly small with the water and wastewater lines. There is no betterment; it is getting the utilities out of the way of the construction. The focus now will be on the North Texas Blvd. since they cannot work on the Lake Lewisville bridge. AGL approached Payne to see if this could be pushed through with the contract. Payne answered it could not if a contact was going to be signed. AGL stated there is a mechanism where they can ask TxDOT (still has to be approved by TxDOT) to do an early release. They do not normally do that, they like it all documented with a full contract. AGL prepared the early release package and the plans were pretty good. The relocation plans were in good shape. Payne has a revised package from AGL this morning (June 22). Payne required language in the letter stating they are at risk and cannot disturb or tie on to the City utilities until the formal agreement is in place. The formal agreement should be at the PUB Meeting of July 13, then to Council July 21 then to Austin for approval. The early release package will get them a month or two worth of construction time. Construction should start July 6. The City will have an inspectors on the job. Half a bridge will be built at North Texas Blvd. for connection purposes and then the existing bridge will be torn down. The southern half of the bridge will then be built. It is a two part process that will be disruptive for a while. This item is at the request of the contractor and no cost to the City of Denton. An easement has been taken in the right of way acquisition so there will be payment for that. An appraisal will be provided to show value and up to the City to agree or disagree. They will also owe for staff's time which will amount about $100,000. This information is in the contract. The installation of the valves went well; our inspector Alberto Lopez spent a lot of time out on this job. They did a good job. Minutes of the Public Utilities Board Meeting June 22, 2015 Page 9 of 9 Motion was made to approve item 10 by Board Member Cheek with the second by Board Member Bynum. The vote was 4 -0 approved. 11. Discussion of the Matrix representing items for discussion for future Public Utilities Board meetings. No Changes 12. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the Public Utilities Board 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 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. 13. Official Action, if necessary, on Closed Meeting item(s) under §551.071- 551.088 of the Texas Government Code, as amended. 14. Adjournment - 11:13 a.m. Richard E. Smith, Chair Administrative Supervisor Howard Martin, ACM Utilities sAlegahour docunients\ordinances\l 5\fund balance policy proposed ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AMENDING THE CITY'S FUND BALANCE POLICY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Governmental Accounting Standards Board ("GASB") has adopted Statement 54, a new standard for governmental fund balance reporting and governmental fund type definitions that became effective in governmental fiscal years starting after June 15, 2010; and WHEREAS, the City Council of the City of Denton adopted a "Fund Balance Policy" on September 20, 2011 with passage of Ordinance No. 2011 -157; and WHEREAS, the City Council of the City of Denton amended its "Fund Balance Policy" on September 10, 2013 with passage of Ordinance No. 2013-218; and WHEREAS, the City Council of the City of Denton desires to amend its "Fund Balance Policy" specifically for the Solid Waste Fund's rate reserve level; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby amends the policy entitled "Fund Balance Policy," attached hereto and made a part hereof, as an official policy of the City of Denton, Texas. SECTION 2. The attached amended Policy shall be filed in the official records with the City Secretary. SECTION 3. 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 10-116 s:\Iegal\our documents\ordinances\1 S\fund balance policy proposed ordinance.doc ♦ 10 11 If." 6 60 1 W cc W, W we] I WWI., 0 5 Le i IN 0 Sm BY: Page 2 CITY OFDENTON FUND BALANCE POLICY (Revised 9/15/2015) Purpose and Overview The purpose of this policy is to establish guidelines for fund balance levels within each of City of Denton's funds. It is essential that the City maintain adequate levels of fund balance to mitigate financial risk that can occur from unforeseen revenue fluctuations, unanticipated expenditures, or adverse circumstances. The fund balance level is also designed to provide an appropriate amount of working capital for the City's general operations. In general, the City of Denton should strive to avoid appropriating fund balance for recurring expenses. However, in the event that fund balance is used to support recurring expenses, the budget should clearly identify the uses of fund balance and provide an explanation of the circumstances requiring the use of fund balance. In addition, the budget should also address the future potential uses of fund balance for operating expenditures. Definitions and Categories Fund Balance — Defined as the difference between a fund's assets and liabilities. According to the Governmental Accounting Standards Board (GASB) statement number 54, fund balance must be allocated into one the following five categories: 1. Non-spendable Fund Balance — includes amounts that are not in a spendable form or are legally or contractually required to be maintained intact. Examples include inventory or endowments. 2. Restricted Fund Balance — includes amounts that can be spent only for the specific purposes stipulated by external resource providers either constitutionally or through enabling legislation. Examples include grants and hotel occupancy taxes. 3. Committed Fund Balance — includes amounts that can be used only for the specific purposes determined by a formal action of the government's highest level of decision-making authority. Commitments may be changed or lifted only by the government taking the same formal action that imposed the constraint originally. 4. Assigned Fund Balance — comprises amounts intended to be used by the government for specific purposes. Intent can be expressed by the governing body or by an official or body to which the governing body delegates the authority. In governmental funds other than the general fund, assigned fund balance represents the amount that is not restricted or committed. This indicates that resources in other governmental funds are, at a minimum, intended to be used for the purpose of that fund. 5. Unassigned Fund Balance — is the residual classification of the general fund and includes all amounts not contained in the other classifications. Unassigned amounts are technically available for any purpose. Note: The above fund balance categories only apply to governmental funds. FUND BALANCE POLICY (Continued) Fund Balance Policy Committed Fund Balance The City Council is the City's highest level of decision-making authority and the formal action that is required to be taken to establish, modify, or rescind a fund balance commitment is an ordinance adopted by the City Council. The ordinance must either adopt or rescind the commitment, as applicable, prior to the last day of the fiscal year for which the commitment is made. The amount subject to the constraint may be determined in the subsequent period. Assigned Fund Balance The City Council authorizes the City Manager or his/her designee as the official authorized person to assign fund balance to a specific purpose approved by this fund balance policy. Order of Expenditure of Fund Balance When multiple categories of fund balance are available for expenditure and approved for use by the City Council (for example, a construction project is being funded partly by a grant, funds set aside by the City Council, and unassigned fund balance), the City will start with the most restricted category and spend those funds first before moving down to the next category with available funds. Normally this would result in the use of restricted, then committed, then assigned, and lastly, unassigned fund balance. Minimum Unassigned Fund Balance It is the goal of the City to achieve and maintain an unassigned fund balance in the general fund equal to 20% of budgeted expenditures for unanticipated expenditures, unforeseen revenue fluctuations, or other adverse circumstances. The fund balance level, however, may be reduced to the equivalent of 15% of budgeted expenditures in unusual financial circumstances. However, if such a situation occurs, the City will implement necessary corrective action within a five-year plan to restore the unassigned fund balance to the equivalent of twenty percent (20%) of budgeted expenditures. Non - governmental fund balances The fund balance categories discussed above do not apply to proprietary funds according to GASB 54. While not required by the GASB, the City recognizes the need to apply a minimum balance policy to the proprietary funds maintained by the City. Therefore, the City shall maintain a minimum ending working capital balance (current assets minus current liabilities) of at least eight percent (8%) of budgeted expenditures for each of the proprietary funds. If the working capital level should fall below the desired minimum, the City will implement necessary corrective action within a five-year plan to restore the working capital balance to 8% of budgeted expenditures. Additionally, for the Electric, Water, Wastewater, and Solid Waste Funds, rate reserve are also established according to the unique operational aspects of each utility. Factors that affect the target rate reserve levels include revenue stability, expense volatility, infrastructure age, debt levels and management plans for the use of the rate reserve funds. The rate reserve levels are intended to minimize the fluctuation in rates due to unforeseen revenue and expenditure variances. The rate reserve level is established at a range of 8% - 12% of expenses for the Electric Fund, at a range of 12% to 16% of expenses for the Wastewater Fund, at a range of 17% - 25% of expenses for the Water Fund, and at a range of 4% - 8% of expenses for the Solid Waste Fund. If the rate reserve balance falls below the desired minimum of the range, the City will implement necessary corrective action within a five-year plan to restore the rate reserve balances to the levels outlined above. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -732, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2014 -2015 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the General Fund of seven hundred sixty -five thousand five hundred sixteen dollars ($765,516) for the purpose of purchasing an ambulance for Fire Station 7 and other equipment for various City departments; declaring a municipal purpose; providing a severability clause; an open meetings clause; and an effective date. BACKGROUND City staff is proposing to amend the City's General Fund FY 2014 -15 Budget as follows: • Medic Unit at Station 7, vehicle only (Fire) • Personal Protection Equipment (Fire) • Decontamination System (Fire) • Ambulance Narcotic Storage Vaults (Fire) Station Alerting (Fire) • Replace Self -Check Equipment (Library) • Benches, Blinds, Lighting (Municipal Court) Computers (Municipal Court) Cameras (Municipal Court) • AWARE Surveillance Camera Enhancements (Municipal Court) • Body Armor (Police) LED Replacements (Traffic Control) • Emergency Battery Backup Systems (Traffic) Upgrade Opticon System (Traffic for Fire) - $246,854 - $ 58,950 - $ 16,950 - $ 19,500 - $109,184 - $ 48,393 - $ 15,000 - $ 8,000 - $ 5,790 - $ 36,543 - $ 32,240 - $ 53,034 - $ 75,078 - $ 40,000 $765,516 These are the supplemental packages discussed during the FY 2015 -16 budget discussions that will be funded out of the current fiscal year (FY 2014 -15). PRIOR ACTION/REVIEW (Council, Boards, Commissions) City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -732, Version: 1 On August 6, 2015, the City Council discussed these expenses in conjunction with staff's presentation of the City Manager's Proposed FY 2015 -2016 Budget. FISCAL INFORMATION This ordinance will amend the FY 2014 -2015 Budget and Annual Program of Services to allow for an adjustment to the General Fund of $765,516 increasing appropriations from $102,846,640 to $103,612,156. 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 9/10/2015 Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE FISCAL YEAR 2014 -2015 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR ADJUSTMENTS TO THE GENERAL FUND OF SEVEN HUNDRED SIXTY -FIVE THOUSAND FIVE HUNDRED SIXTEEN DOLLARS ($765,516) FOR THE PURPOSE OF PURCHASING AN AMBULANCE FOR FIRE STATION 7 AND OTHER EQUIPMENT FOR VARIOUS CITY DEPARTMENTS; DECLARING A MUNICIPAL PURPOSE; PROVIDING A SEVERABILITY CLAUSE, AN OPEN MEETINGS CLAUSE AND AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2014 -279, the City Council of Denton, Texas, approved the Fiscal Year 2014 -2015 Budget and Annual Program of Services (the "Budget "); and WHEREAS, the City of Denton desires to purchase an ambulance for Fire Station 7 and other equipment for various City departments; and WHEREAS, the City Council finds that this Budget Amendment serves an important municipal purpose as eligible items for expenditure in the current Budget, consistent with Section 102.010 of the Texas Local Government Code and other applicable laws; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the above preamble to this Ordinance are true and correct and are hereby adopted. SECTION 2. The Fiscal Year 2014 -2015 Budget and Annual Program of Services is hereby amended by the City Council to allow for an adjustment to the General Fund of $765,516, increasing appropriations from $102,846,640 to $103,612,156. SECTION 3. This Ordinance shall be filed with the City Secretary, who is directed to attach a copy of this Ordinance to the Fiscal Year 2014 -2015 Budget and Annual Program of Services. SECTION 4. This Ordinance was approved by at least five members of the City Council as required by Section 8.08 of the City Charter. SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this Ordinance, or the application thereof to any person or under any circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. sAlegal \our documents \ordinances\l5 \budget amendment ord.docx SECTION 6. It is officially found and determined that the meeting at which this Ordinance was passed was open to the public as required by law, and the public notice of the time, place and purpose of this meeting was given as required by law. SECTION 7. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ��n r BY: Page 2 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -769, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the implementation of a Mobile Workforce Management Software Solution for Denton Municipal Electric (RFP 5821- awarded to Clevest Solutions, Inc. in the not -to- exceed amount of $366,000). The Public Utilities Board recommends approval (4 -0). RFP INFORMATION Denton Municipal Electric's dispatch operation provides customer response services for utility customers along with several other City of Denton Departments including Water, Wastewater, Traffic Control, Communications, Airport, Drainage, and Solid Waste. The current Workforce Management Application operates on a SQL Server 2000 database on a Windows Server 2003 platform -which has reached the end of its operable lifespan. Therefore, staff is recommending the replacement of this system with the Clevest Solutions, Inc. Mobile Workforce Automation System for Utilities, an application that is designed to be utility grade in its capabilities, more robust, and supportable. A detailed description of the use of this application is included in the attached Public Utilities Board Agenda Information Sheet (Exhibit 1). Requests for Proposals were sent to 133 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Two 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. Clevest Solutions, Inc. was ranked the highest and determined to be the best value for the City of Denton. Clevest Solutions, Inc. is a provider that specializes in mobile workforce automation software for utilities. Clevest is also an Esri Gold Partner and has implemented solutions in many utilities across the country including Bluebonnet Electric Cooperative in Bastrop, TX, Connexus Energy in Ramsey, MN and the City of Calgary, Alberta. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On August 10, 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 9/10/2015 File #: ID 15 -769, Version: 1 Award to Clevest Solutions, Inc., in the not -to- exceed amount of $366,000. This amount includes a 10% contingency for integrations or contingencies for required actions that may be discovered during implementation beyond the original scope. PRINCIPAL PLACE OF BUSINESS Clevest Solutions, Inc. Richmond, BC Canada ESTIMATED SCHEDULE OF PROJECT The project is estimated to be completed within 145 calendar days of notice to proceed. FISCAL INFORMATION The purchase of the software upgrade will be funded from Denton Municipal Electric Capital Project Fund account number 603581500.1365.3980. Requisition 4125619 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 9/10/2015 EXHIBIT 1 PUBLIC UTILITIES BOARD AGENDA ITEM #2 AGENDA INFORMATION SHEET AGENDA DATE: August 10, 2015 DEPARTMENT: Electrical Engineering UTILITIES ACM: Howard Martin, Utilities, 940 - 349 -8232 SUBJECT Consider recommending approval to award a contract to Clevest Solutions, Inc. in accordance with the specifications of RFP 45821 for implementation of a mobile workforce management software solution for Denton Municipal Electric (DME) in an amount not to exceed $366,000.00. BACKGROUND INFORMATION Besides Denton Municipal Electric, DME's Dispatch Operations provides customer response tasks for numerous City of Denton Departments including Water, Wastewater, Traffic Control, Communications, Airport, Drainage, and Solid Waste. Between the hours of 8 a.m. to 5 p.m., Dispatch Operations is cued into service based on Customer Service Department call overloads, customer choice using the City IVR (Option for Dispatch Operations), or when a City service representative is not sure which department to transfer an incoming request/question to. From 5 p.m. to 8 a.m., Dispatch Operations receives all calls into the City with the exception of 911 or Police and Fire. DME's Dispatch Operations must be able to send work orders to field crews performing repair or maintenance work on their respective system. The existing work force management application was programmed by a former DME employee in Yr2001 using Microsoft Access (0 97. Dispatch Operations creates tickets in the current system, prints them, and then hands the tickets to the appropriate field personnel to complete work. Once completed, the paper work is returned back to the Dispatch Operations for the ticket to be closed in the Microsoft Access° database and recorded, when appropriate, in DME's GIS system. The current application operates on a SQL Server 2000 database on a Windows Server 2003 platform — both of which have reached the end of their operable lifespan. In 2014, the custom programming associated with this database failed and created a situation where Dispatch Operations was unable to properly track work orders and included the potential for loss of all of historic data. Fortunately, DME had in -house expertise who was able to debug the code and allow the antiquated system to continue to be used. Within a few weeks after the initial failure, the system failed for a second time. Again, in -house expertise was able to debug the program. This data is important and can be used to determine legal considerations such as when, who, and what was done if a customer claims damages due to actions on the part of City field staff. However, with the end of life for the operating system, combined with the two failures, there is no path forward with the existing system and application. DME believes it is now required to replace the application with a software system designed to be utility grade in its capabilities, more robust, and supportable. Additionally, with the implementation of a new software, the need AIS — PUB Agenda Item 42 EXHIBIT 1 August 10, 2015 Page 2 of 3 for the outdated SQL Server 2000 database and Windows Server 2003 platform will be eliminated. The proposed workforce management system considered the future. With current technology and software, options to pass work assignments between Dispatch Operations and field crews has greatly expanded. During the proposal stage, DME searched for a software that can be adapted to a mobile workforce solution and integrated into DME's GIS and OMS systems, when applicable, so that DME can realize greater interoperability between Dispatch Operations and the field crew tools. As the system develops, workflows to eliminate unnecessary time and paper for manual handoffs and data exchanges between field crews and Dispatch can be implemented. Devices, such as smartphones and tablets, can be utilized to meet the needs of the field crew and a mobile work force solution allows DME to integrate locational awareness from mobile devices so crews are routed to jobs quickly and efficiently. The reduction of paper passed between office and field reduces the opportunity for errors in the tickets as they are completed and improves and increases the amount of information obtained from the crews working in the field. Additionally, the development of a dashboard will allow managers to view ticketing and gain better insight into the work being performed and completed on a day -to -day basis. OPTIONS 1. Recommend awarding the purchase of a mobile workforce management software solution to Clevest Solutions, Inc. in the total estimated expenditure not to exceed $366,000.00. 2. Not recommend awarding the purchase of a mobile workforce management software solution to Clevest Solutions, Inc. and provide staff direction on what other actions to take. RECOMMENDATION DME recommends purchasing the mobile workforce management software solution from Clevest Solutions, Inc. in the total estimated expenditure not to exceed $366,000.00. This value contains a 10% amount for integrations or contingencies for required actions that may be discovered during implementation beyond the original scope. Clevest Solutions, Inc. is a provider of mobile workforce automation software for utilities. Clevest is also an Esri Gold Partner. Clevest has implemented solutions in many utilities across the country including Bluebonnet Electric Cooperative in Bastrop, TX, Connexus Energy in Ramsey, MN and the City of Calgary, Alberta. ESTIMATED SCHEDULE OF PROJECT Upon approval from the Public Utility Board on August 10, 2015 and the subsequent approval from the Denton City Council on September 1, 2015, it is anticipated this project will begin in October 2015. PRIOR ACTION /REVIEW (Council, Boards, Commissions) No prior action. DATE SCHEDULED FOR COUNCIL APPROVAL Upon approval from the Public Utility Board on August 10, 2015 this will be submitted to the Denton City Council for approval on September 1, 2015. AIS — PUB Agenda Item 42 EXHIBIT 1 August 10, 2015 Page 3 of 3 FISCAL INFORMATION The purchase of the mobile workforce solution software will be funded from account number 600500.1365.3970. 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 Jerry Fielder, Trey Price, Sandra Allsup, Sam Mall, Jerry Looper, and Mike Gronholz. Staff recommends the highest evaluated proposal. EXHIBITS 1. Evaluation of RFP 5821 2. Scope of Services Respectfully submitted: / ►i Phil Williams General Manager of Electric Utilities Denton Municipal Electric Prepared by: Jerry Fielder, P.E. Division Engineering Manager — Distribution Denton Municipal Electric EXHIBIT 2 Ex 3 BAFO Evaluation Clevest Solutions Inc. Richmond, SC Canada RFP 5821 BAFO for Mobile Workforce Management Software Solution section A _ imnetmantasnn sarvina, 145 Total Cost of Implementation Services: $125,000.00 Section B - Annual Costs ITEM UOM Description Year i Proposed HR Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: $187.50 Perpetual Licensing Costs $42,300.00 Lump Sum- FYear Number of IS Pricing shall include annual site licensing forall users, as described in Exhibit 3 -Scope of Work. $130,000.00 ITEM UOM Description of Requested Services Lump Sum- CALENDAR Complete Annual Maintenance & Support Costs Cast of Service Days to 9 IS 'Must provide detailed listing of all components included in this category. Attach additional $26,000.00 $26,000.00 $26,000.00 Complete sheets as necessary. Annual Subtotal: $156,000.00 $26,000.00 $26,000.00 Pro act Project Total (Three Years): Including Licensing, Implementation, and Support 1 IS Kickoff $10,000.00 10 2 IS Integration (OMS, CIS and CIS) $40,000.00 60 4 IS Integration (Cityworks) $30,000.00 30 5 IS DME Staff Training $10,000.00 10 6 IS DME On -site Testing $20,000.00 20 7 IS Roll Out $15,000.00 15 145 Total Cost of Implementation Services: $125,000.00 Section B - Annual Costs ITEM UOM Description Year i Year 2 HR Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: $187.50 Perpetual Licensing Costs $42,300.00 Lump Sum- FYear 8 IS Pricing shall include annual site licensing forall users, as described in Exhibit 3 -Scope of Work. $130,000.00 $0.00 The City estimates approximately 15 office and 25 field users of the software. Complete Annual Maintenance & Support Costs 9 IS 'Must provide detailed listing of all components included in this category. Attach additional $26,000.00 $26,000.00 $26,000.00 sheets as necessary. Annual Subtotal: $156,000.00 $26,000.00 $26,000.00 $333,000.00 Project Total (Three Years): Including Licensing, Implementation, and Support Section C - Additional Services and Information: ITEM UOM DESCRIPTION $36,900.00 OPT1 HR Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: $187.50 NOTE: Item #3 (Data Migration) has been removed from the evaluation. CGI Technologies and Solutions Inc. Dallas, TX 330 $248,625.00 Year 1 Proposed Year 3 $36,900.00 $0.00 $0.00 Number of $23,820.00 $23,820.00 $42,300.00 Lump Sum- CALENDAR Price 50 49 100 Cost of Service Days to Complete Pro act $248,625.00 330 330 $248,625.00 Year 1 Year 2 Year 3 $36,900.00 $0.00 $0.00 $5,400.00 $23,820.00 $23,820.00 $42,300.00 $23,820.00 $23,820.00 $135.00 $338,565.00 Possible Points: 10 Delivery 10 8 15 Compliance with Specifications 12 8 25 Probable Pertormance 25 20 50 Price 50 49 100 Total: 97 85 Clevest Solutions Inc. CGI Technologies and Solutions Inc. Richmond, BC Canada Dallas, TX EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD August 10, 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, August 10, 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, Barbara Russell and Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Phil Gallivan, Lilia Bynum and Charles Jackson OPEN MEETING: CONSENT AGENDA: 2. Consider recommending approval to award a contract to Clevest Solutions, Inc. in accordance with the specifications of RFP 45821 for implementation of a mobile workforce management software solution for Denton Municipal Electric (DME) in an amount not to exceed $366,000.00. Motion was made to approve item 2 by Board Member Robinson with the second by Board Member Cheek. The vote was 4 -0 approved. Adjournment - 11:24 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE IMPLEMENTATION OF A MOBILE WORKFORCE MANAGEMENT SOFTWARE SOLUTION FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5821- AWARDED TO CLEVEST SOLUTIONS, INC. IN THE NOT -TO- EXCEED AMOUNT OF $366,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for a Mobile Workforce Management Software Solution for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5821 Clevest Solutions, Inc. $366,000 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 5821 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: DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 CLEVEST SOLUTIONS INC. MASTER AGREEMENT for Software License, Support and Maintenance A reement No.: 150018 Effective Date: September 1t, 2015 Client: City of Denton Client Rebecca Hunter 901 B Texas Street Contact: Phone: (940) 349 -7100 Denton, TX 76209 Fax: Clevest Victor Holysh, Chief Financial Officer Clevest: Clevest Solutions Inc. Contact: Phone: 604 214 9700 13911 Wireless Way, Ste 100 email: contra ctadministrator (o-)clevest.com Richmond, BC, V6V 3139, Canada Fay- Fna ?m Q7Q1 Ordered Products and Services and Fees: In accordance with the terms of this Agreement, the Client hereby orders the following products and services. All prices listed below are quoted in U.S. currency and are subject to change only in accordance with the terms of this Agreement. Description of Licensed Software, as amended from time to time in accordance with this Agreement Fees License Type ❑x Perpetual Product Code Description Quantity N/A N/A N/A ❑ Term (n) Years (must be coupled with maintenance for equivalent period) Permitted Line and The license extends to all employees of City of Denton subject to purchased limits. Scope of Business Maximum # of users: 15 Workspace (office) and 25 WorkBook (mobile) Users. Product Code Description Quantity MWM- 100 -002 Clevest MWFM Server License - Oracle based 1 WSP- 100 -001 Clevest Workspace (office) License 15 WSP- 100 -003 Clevest GIS Overlay License ( WorkSpace) 1 MWB- 001 -007 WorkBook for Windows Standard 25 MWB- 001 -021 WorkBookGIS Integration 1 MWM- 200 -016 Clevest MWFM Mobile Service Orders Solution License - NorthStar 1 MWM- 200 -017 Clevest MWFM Mobile Service Orders Solution License - CityWorks 1 MWM- 200 -034 Clevest MWFM OMS Solution License - Schneider 1 MWM- 200 -080 Clevest MWFM Locates Solution License 1 (Exhibit H) $130,000 Software version MWFM 5.0 or higher Support and Maintenance and Escrow, as amended from time to time in accordance with this Agreement Support and Maintenance for Licensed Software (Exhibit H) $26,000 Escrow Not Included Initial Term (if applicable) ❑x One (1) Year applicable) ❑ Two (2) Years El Three (3) Years ❑ Other _ Years Initial Professional Services, as amended from time to time in accordance with this Agreement Professional Services provided under separate Statement of Work agreement. Exhibit H $125,000 RFP 5821 Page 1 Estimated Initial Hardware, as amended from time to time in accordance with this Agreement Fees Product Code Description Quantity N/A N/A N/A RFP 5821 Page 1 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 Billing Schedule: Perpetual License: $130,000 • Upon contract execution: 25% • Agreed Statement of Work: 15% • Solution loaded in test environment: 40% • Completion of User Acceptance Test: 20% Professional Services: $125,000 Support and Maintenance (year 1): $26,000 • Upon contract execution: 15% • Agreed Statement of Work: 25% • Solution loaded in test environment: 30% • Completion of User Acceptance Test: 30% Travel Expenses: $15,000 (estimated) • Monthly as incurred. Estimate based on 10 person trips for the initial scope of work. Reimbursement will be based on 100% of actual expenses. Copies of expenses shall be provided with each invoice. Payment terms will apply. Not to be exceeded without prior authorization by Client. License: Client agrees to abide by the terms and conditions set forth in the Software License Agreement forming part of this Contract. Support and Maintenance: Client agrees to abide by the terms and conditions set forth in the Support and Maintenance Agreement forming part of this Contract. Professional Services: Client agrees to abide by the terms and conditions set forth in the Professional Services Agreement forming part of this Contract. General Terms and Conditions: Client agrees to abide by the terms and conditions set forth in the General Terms and Conditions forming part of this Contract. Clevest shall provide products and /or services in accordance with the City's document RFP 5821- Workforce Management Solution Software and Clevest's response to that RFP, a copy of both which are on file at the office of Purchasing Department 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) Software License Agreement (Exhibit "A "); (b) Support and Maintenance Agreement (Exhibit "B "); (c) Professional Services Agreement (Exhibit "C "); (d) General Terms and Conditions (Exhibit "D "); (e) Statements of Work drafted in accordance with the Professional Services Agreement; (f) Request for Proposal ( "RFP ") and Clevest's response to the RFP (Exhibit "E" on File at the Office of the Purchasing Department); (g) Insurance Requirements (Exhibit "F "); (h) Form CIQ — Conflict of Interest Questionnaire (Exhibit "G "); (i) Contractor's Proposal. (Exhibit "H "); 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, including any mutually agreed amendments made in accordance with the Contract, then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." CONTRACT TERM: The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one -year periods. The contract shall commence upon the 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. 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, Clevest shall promptly cease all further work pursuant to the Contract, with such RFP 5821 Page 2 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 exceptions, if any, specified in the notice of termination. The City shall pay Clevest, 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. Total Contract Amount The contract total for services shall not exceed $366,000. Pricing shall be per Exhibit H, attached. IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CLEVEST SOLUTIONS, INC. DocuSigned by: Vigor gill BY: AUTHORIZED SIGNATURE 8/31/2015 Date: victor Holysh Name: Title: CFO 604 - 214 -9700 x268 Phone Number: victor.holysh @clevest.com Email Address: CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: BY: Date: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSigned by: John Knight GEORGE C. CAMPBELL, CITY MANAGER RFP 5821 Page 3 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 2.1 SOFTWARE LICENSE AGREEMENT DEFINITIONS "Agreement" means the terms and conditions contained in this Software License Agreement, together with the terms and conditions in the Support and Maintenance Agreement, Professional Services Agreement, the General Terms and Conditions and the cover page to which this Software License Agreement is attached or incorporated by reference. "Customizations" means any customizations to the "Clevest" software developed by Clevest on behalf of Client pursuant to the Professional Services Agreement forming part of this Agreement or otherwise. "Documentation" means those technical publications and writings in whatever form relating to the use of the Licensed Software including, but not limited to, references, user manuals, installation guides, systems administrator guides and technical guides, provided or to be provided by Clevest to Client in connection with the Licensed Software. "Intellectual Property Rights" means inventions, patents, copyrights, trade - marks, service marks, industrial designs, design patents, integrated circuit topography rights, applications for registration of any of the foregoing, and know- how, trade secrets, confidential information, trade or business names and any other intellectual property rights. "License Fees" means the license fees to be paid by Client to Clevest for use of the Licensed Software, as specified on the cover page of this Agreement and subject to modification from time to time in accordance with the terms of this Agreement. "Licensed Software" means the software described on the cover page of this Agreement and any Customizations and Upgrades, as well as the associated Documentation. "Maintenance and Support Fees" means the fees to be paid by Client to Clevest for the Maintenance and Support Services. "Maintenance and Support Services" means the maintenance and support services purchased by Client under this Agreement. "Object Code" means computer code that is readable and usable by machines but not generally readable by humans without reverse assembly, reverse compiling or reverse engineering. "Source Code" means computer code and related system documentation that is in human - readable form, including, but not limited to, all comments and any procedural code such as job control language. "Upgrade" means a new release of, or update or enhancement to the Licensed Software, which the Client is entitled to receive pursuant to the terms and conditions of the Support and Maintenance Agreement or for which the Client has paid for outside of the terms and conditions of the Support and Maintenance Agreement. 'Warranty Period" has the meaning provided in Section 4.1. GRANT OF LICENSE License. Subject to the terms and conditions of this RFP 5821 MBIT 5 Agreement, and subject to full and timely payment of all License Fees owed hereunder, Clevest hereby grants to Client and Client hereby accepts, a limited, non - exclusive, non- transferable, license (the "License ") to: (a) use the functionality of the Licensed Software as licensed and described on the cover page of this Agreement only for the Line of Business specified on the cover page of this Agreement; and (b) make copies of the Licensed Software and Documentation solely for non - production, archival or backup purposes, but only if Client ensures that all copies it makes of the Licensed Software and Documentation under this Section include all proprietary or intellectual property notices recorded on the original items provided by Clevest. 2.2 Scope of use. Client will use the Licensed Software only as permitted in this Agreement. Any additional or other use by Client will require an additional license from Clevest and payment of additional License Fees and, as applicable, Maintenance and Support Fees. 2.3 Object Code only. Client acknowledges and agrees that this Agreement does not grant Client any rights with respect to the Source Code to the Licensed Software. Client covenants and agrees not to translate, create derivative works of, reverse engineer, decompile or disassemble the Licensed Software in whole or in part. Client shall not (i) alter, modify, enhance, adapt, re- arrange, reverse engineer, decompile, disassemble, make works derived from the Licensed Software or attempt to generate or access the Source Code for the Licensed Software, whether by converting, translating, decompiling, disassembling or otherwise, or (ii) enter or manipulate data or information within the database underlying the Licensed Software other than via the Licensed Software. Client shall not attempt to aggregate users or circumvent Clevest's licensing restrictions via technical means, including, but without limitation, the use of any interface between the Licensed Software and another program that performs functionality substantially similar to the Licensed Software. 2.4 Modification. Client may not modify the Licensed Software without the prior written authorization of Clevest. 2.5 No sale or license by Client. Client may not sell, loan, lease, rent, license, sublicense, grant a security interest in, distribute, or otherwise transfer rights to or possession of the Licensed Software in whole or in part to any person or entity, or use the Licensed Software in any service bureau or time sharing arrangement, facility management or third party training arrangement or any other arrangement where Client processes the data of a third party. 2.6 Term of license. Subject to the termination provisions in Section 7 of the License Schedule, the License granted hereunder shall take effect as of the Effective Date and shall continue for the initial term specified on the cover page of this Agreement. If such initial term is not a perpetual term, then the License shall automatically renew for successive terms equal to the length of the initial term, unless a party gives written notice to the other party at least thirty (30) days before the expiration of the then - current term advising that it wishes to terminate the License at the end of the then - current term. In addition to any other terms of this Agreement which may modify the License Fees payable hereunder, Clevest may modify the License Fees for renewal terms by providing Client with notice of any License Fee modifications at least sixty (60) days before the expiration of the then - current term. Page 4 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 2.7 Additional Software. Additional licenses of the Licensed Software which are larger in scope, number or otherwise than as set forth on the cover page of this Agreement shall be agreed upon between the parties in writing, and any such additional Licenses shall incorporate the terms and conditions of this Agreement. Fees for additional licenses will be at the then - current price list published from time to time by Clevest. 2.8 Ownership, protection and security. Clevest and Client acknowledge and agree that as between Clevest and Client, Clevest owns and will retain title and ownership of all Intellectual Property Rights and other interests in and to the Licensed Software and Documentation (and all copies of the Licensed Software and Documentation) including, but not limited to, any improvements thereto whether designed, created and /or developed by Clevest, Client or its agents or contractors, subject to the license rights specifically granted to Client in this License Agreement. Client hereby assigns to Clevest any and all right, title and interest it might have in and to any such improvements and all Intellectual Property Rights therein. 2.9 Hardware & Third Party Software. This Agreement does not include the provision of hardware or third party software licenses to Client. 3. DELIVERY AND INSTALLATION 3.1 Delivery of the Licensed Software: Clevest will deliver the Licensed Software to Client at such location as the parties will mutually agree upon in writing. 3.2 Installation. Client shall be responsible for installing the Licensed Software. Installation services may be purchased from Clevest in accordance with the Professional Services Agreement forming part of this Agreement. 4. WARRANTIES AND REMEDIES 4.1 Limited warranty for Licensed Software. Subject to Section 4.2 of this Software License Agreement, Clevest warrants that for a period of 12 months (the 'Warranty Period ") following the Effective Date, the Licensed Software will substantially conform to the functional specifications contained in the Documentation. Clevest does not warrant that the Licensed Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect its performance, or that the applications and functionality contained in the Licensed Software are designed to meet all of Client's business requirements. Client's exclusive remedy and Clevest's exclusive liability for any breach of the warranty made in this Section 4.1 will be that Clevest will use commercially reasonable efforts to repair or replace the affected portion of the Licensed Software and /or the Documentation, at Clevest's sole cost and expense. 4.2 Restrictions. The warranty set forth at Section 4.1 of this Software License Agreement shall not apply if: (i) the Licensed Software is not used in accordance with the Documentation, (ii) the performance failure of the Licensed Software is attributable in substantial part to Client materially deviating from the operating instructions specified by Clevest for Client's use of the Licensed Software; (iii) Client or another party (other than Clevest or an authorized agent of Clevest) has modified the Licensed Software, (iv) the performance failure of the Licensed Software is attributable in any way to the combination of the Licensed Software with another product or products provided by Client that have not been approved by Clevest or in hardware or an operating environment that is not controlled by Clevest, or (v) Client does not provide notice in writing to Clevest within the Warranty Period specifying the breach of warranty in reasonable detail. 4.3 Other warranties excluded. THE FOREGOING WARRANTIES IN SECTIONS 4.1 AND 4.2 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS. EXCEPT AS PROVIDED IN SECTIONS 4.1 AND 4.2, CLEVEST MAKES NO OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE LICENSED SOFTWARE. CLEVEST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND TO CLIENT WITH RESPECT TO ANY HARDWARE OR THIRD PARTY SOFTWARE. 5. PAYMENT 5.1 6. License Fees. Client will pay to Clevest the License Fees specified on the cover page of this Agreement, as modified in writing and agreed by both parties. INTELLECTUAL PROPERTY INFRINGEMENT 6.1 Intellectual property indemnity. Notwithstanding Section 4.3 of this Software License Agreement, Clevest will defend, indemnify and hold harmless Client and its employees, officers and directors against all actions, proceedings, demands, claims, liabilities, losses, damages, judgments, costs and expenses (including, but without limitation, reasonable legal fees), but excluding incidental or consequential damages suffered or incurred by Client directly (as opposed to incidental or consequential damages suffered or incurred by third parties who are, in turn, seeking the same from Client, which will be covered by the indemnity set forth in this Section), arising from any claim asserted against Client that the Licensed Software, or any portion thereof, infringes any United States or Canadian copyrights, patents, trade secrets, or trade marks of any third party, except to the extent the claim is based on: (a) the use of a prior or modified Licensed Software release if the infringement claim could have been avoided by the use of a current, unmodified Licensed Software release; (b) use of the Licensed Software in a manner not contemplated by the Documentation; (c) Client's negligence; (d) Clevest's compliance with or use of designs, requirements, specifications, instructions or alterations supplied, developed or requested by Client; or (e) the use of the Licensed Software, or any component thereof, in combination with another product or products provided by Client that have not been approved by Clevest; and provided Client gives Clevest timely notice in writing of the institution of such claim, suit or proceeding and permits Clevest to defend, compromise or settle the claim and provides, at Clevest's request and expense, all available information, assistance and authority to so defend, compromise or settle the claim. Clevest will have sole control of the defense of any such claim, suit or proceeding including, but not limited to, appeals and of all negotiations for settlement, including, but not limited to, the right to effect the settlement or compromise thereof. RFP 5821 Page 5 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 6.2 Remedies for infringement. Clevest further agrees that if Client is prevented from using the Licensed Software due to an actual or claimed infringement under Section 6.1 of this Software License Agreement, or if Clevest believes the Licensed Software so infringes, then at Clevest's sole discretion, Clevest may: (a) procure for Client, at Clevest's expense, the right to continue to use the Licensed Software; (b) replace or modify the Licensed Software, at Clevest's expense, so as to become non - infringing, provided that such replaced or modified version of the Licensed Software will operate in a substantially similar manner as the version licensed to Client immediately prior to such replacement or modification; or (c) terminate this License Agreement as it relates to the infringing Licensed Software and return the portion of the License Fees for the infringing Licensed Software representing the remaining useful life of the Licensed Software, calculated on a pro rata basis based on a useful life for the Licensed Software of five years. 6.3 THIS SECTION 6 WILL CONSTITUTE CLEVEST'S ENTIRE OBLIGATION TO CLIENT AND CLIENT'S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF THE PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES RESPECTING THE LICENSED SOFTWARE. TERMINATION 7.1 Termination by Clevest. Notwithstanding anything to the contrary in this Agreement, Clevest, by written notice to Client, may terminate this License or suspend Clevest's further performance without terminating this Agreement upon the occurrence of any of the following: (i) Client terminates or suspends doing business; (ii) Client becomes subject to any bankruptcy or insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing thereof), or becomes insolvent, becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment for the benefit of creditors; (iii) Client fails to pay to Clevest any amount when due hereunder and fails to remedy such failure within fifteen (15) days after receiving written notice thereof from Clevest, or (iv) Client commits a material breach or failure of any of its other obligations under this Agreement and, except for any breach of Client's confidentiality obligations or a breach of Clevest's Intellectual Property Rights, has not cured such breach (or, if the breach or failure is such that its cure would take a longer period, has not commenced and diligently proceeded to cure such breach or failure) within fifteen (15) days after receiving written notice from Clevest specifying such breach or failure. 7.2 Termination by Client. Notwithstanding anything to the contrary in this Agreement, Client, by written notice to Clevest, may terminate this License or suspend Client's further performance without terminating this Agreement upon the occurrence of any of the following: (i) Clevest terminates or suspends doing business; (ii) Clevest becomes subject to any bankruptcy or insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing thereof), or becomes insolvent, becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment for the benefit of creditors; or (iii) Clevest commits a material breach or failure of any of its obligations under this Agreement and, except for any breach of Clevest's confidentiality obligations, has not cured such breach (or, if the breach or failure is such that its cure would take a longer period, has not commenced and diligently proceeded to cure such breach or failure) within fifteen (15) days after receiving written notice from Client specifying such breach or failure. 7.3 Survival. Sections 5.1, 7.4, 8.1 and 9.1 and such other provisions as may reasonably be expected to remain in force will survive the expiry or termination of this License or the Agreement and will remain in full force and effect following such expiry or termination. The expiry or termination of this License or the Agreement will not affect the rights of any party to make a claim for damages arising from a breach of any provision of this Agreement which occurred prior to such expiry or termination. 7.4 Obligations on termination. Upon any expiration or termination of this License or the Agreement, (i) Client will immediately cease any and all use of the Licensed Software and Documentation; (ii) Client will immediately return to Clevest or destroy all copies of the Licensed Software and Documentation in Client's possession and delete any copies of the Licensed Software stored on any of Client's computers; and (iii) each party will return to the other party any and all Confidential Information of the other party provided in connection with this Agreement in its possession or control and, upon request from the other party, each will deliver a certificate of an officer of the party certifying the completeness of same. AUDIT 8.1 Audit. During the term of this License and for twelve months after termination or expiry, Client will permit Clevest and its representatives and agents to conduct periodic audits of Client's relevant books, records and computer systems in order to verify Client's compliance with the terms and conditions of this Agreement. Such audits will be conducted at Client's place of business and /or where the Licensed Software is or was located during Client's normal business hours with reasonable advance notice. Clevest will pay for the cost of the audit unless Clevest reasonably determines from the audit that Client has materially breached this Agreement, in which case Client will reimburse Clevest for the cost of the audit. Client will immediately pay to Clevest all additional amounts owed to Clevest as determined by the audit, together with interest thereon as provided for in this License Agreement. The remedies provided to the Clevest under this Section 8 are not exclusive and any such remedy will be in addition to and not limit any other remedy which Clevest is entitled to seek at law, in equity, by statute or under this Agreement. GENERAL 9.1 Clevest's General Terms and Conditions Schedule attached hereto are part of this Software License Agreement and are incorporated by this reference. Such General Terms and Conditions shall survive any termination or expiry of this Agreement. End of Software License Agreement RFP 5821 Page 6 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 SUPPORT AND MAINTENANCE AGREEMENT DEFINITIONS "Agreement" means the terms and conditions contained in this Support and Maintenance Agreement, together with the terms and conditions in the Software License Agreement, Professional Services Agreement the General Terms and Conditions and the cover page to which this Support and Maintenance Agreement is attached or incorporated by reference. "Customizations" means any customizations to the "Clevest" software developed by Clevest on behalf of Client pursuant to the Professional Services Agreement forming part of this Agreement or otherwise and shall include, without limitation, custom reports, integrations and custom functionality or features. "Defect" shall mean a reproducible instance of an adverse and incorrect functioning of the Licensed Software that impacts Client's ability to use a functionality described in the Documentation, assuming proper usage of the system and system environment. "Documentation" means those technical publications relating to the use of the Licensed Software including on -line help, references, user manuals, installation guides, systems administrator guides and technical guides, provided or to be provided by Clevest to Client in connection with the Licensed Software. "Intellectual Property Rights" means inventions, patents, copyrights, trade - marks, service marks, industrial designs, integrated circuit topography rights, applications for registration of any of the foregoing, and know -how, trade secrets, confidential information, trade or business names and any other intellectual property rights. "Licensed Software" means the software described on the cover page of this Agreement and any Customizations and Upgrades, as well as the associated Documentation. "Support and Maintenance Fees" means the support and maintenance fees to be paid by Client to Clevest as specified on the cover page of this Agreement and subject to modification in accordance with the terms of this Agreement. "Object Code" means computer code that is readable and usable by machines but not generally readable by humans without reverse assembly, reverse compiling or reverse engineering. "Sandbox" shall mean the testing environment that is used to stage an Upgrade deployment, to be accessed by appropriate Client users for the purpose of verifying Upgrade readiness prior to their activation on the Production environment. "Production" shall mean the production environment that hosts the Licensed Software, accessed by the Client's operational users. "Source Code" means computer code and related system documentation that is in human - readable form, including all comments and any procedural code such as job control language. "Upgrade" means a new release of, or update or enhancement to the Licensed Software, which the Client is entitled to receive pursuant to the terms and conditions of the Support and Maintenance Agreement or for which the Client has paid for outside of the terms and conditions of the Support and Maintenance Agreement. "Version" shall mean the Licensed Software product release identification scheme generally in the form of X.Y.Z, where X.Y represents a major release or base level version, Z represents a minor release level. 2. INTRODUCTION 2.1 This Support and Maintenance Agreement sets forth the terms and conditions under which Clevest will provide maintenance and support (collectively, "Maintenance ") to Client for the Licensed Software. All terms not otherwise defined herein have the meanings given to them elsewhere in this Agreement. 3. TERM AND RENEWALS 3.1 Subject to the termination provisions in Section 9 of this Support and Maintenance Agreement, this Support and Maintenance Agreement shall take effect as of the Effective Date and shall continue for the initial term specified on the cover page of this Agreement. 4. CHANGES TO SUPPORT AND MAINTENANCE TERMS 4.1 Clevest reserves the right, from time to time, to change its standard Maintenance terms and conditions by mutual agreement with Client in writing, provided that any change to such terms and conditions will not materially reduce the level of support set forth in this Support and Maintenance Agreement. 5. SUPPORT AND MAINTENANCE FEES 5.2 Support and Maintenance Fees for the initial year of Maintenance are due upon contract execution and invoiced concurrent with the Licensed Software. Support and Maintenance Fees for each subsequent year of Maintenance are due and payable when the previous year's coverage has ended and within thirty (30) days from Client's receipt of a Clevest invoice. If payment is not received in accordance with the payment terms of this Agreement, Clevest shall have the right to discontinue Maintenance without any liability to Client, until such time as Client pays the applicable Maintenance fees in full. Clevest shall have no obligation to provide Client with Maintenance if Client has not renewed Maintenance or paid the applicable Support and Maintenance Fees pursuant to the agreed payment terms. RFP 5821 Page 7 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 5.3. Any Customizations requested by Client may be performed at extra cost to the Client, as described in a Statement of Work to be mutually agreed between the parties pursuant to the Professional Services Agreement forming part of this Agreement. If indicated in the Statement of Work, the Support and Maintenance Fees payable hereunder may be increased by Clevest upon shipment of the Customization to account for any increased Maintenance obligations of Clevest for the Licensed Software after the deployment of any Customization. 6. DESCRIPTION OF SUPPORT AND MAINTENANCE The following describes Clevest's responsibilities during the term of this Support and Maintenance Agreement. Throughout, "hours" and "days" are counted within regular operating hours for the Clevest support centre, excluding local holidays. 6.1 Support (a) Clevest will provide email and telephone technical support in response to requests from the Client's designated support contacts. Client may designate up to three (3) representatives as such designated support contacts by providing written notice to Clevest. (b) Telephone support hours will be during business working days from Monday- Friday, 9:00 am — 5:00 pm Pacific Standard Time (PST) or Pacific Daylight Time (PDT) if in effect. Email support requests will be received anytime with responses provided during regular support hours. (c) For Severity Level 1 issues, Clevest will respond within one hour, on a 7/24 basis; involve other Clevest personnel as necessary to resolve; and escalate issues from Tier 1 to Tier 2, Customer Care Manager, VP Client Services, COO, and CEO, if and as required. 6.2 Support may include: (a) Application related questions from designated support contact points. (b) Outage notification for application- driven outages. (c) Maintenance of a list of System Improvement Requests (SIRS) and Defects. SIRS are customer suggested enhancements but do not constitute a specific request for additional services. (d) Target response time for acknowledgement of receipt of support request is within 1 hour during support hours. Target maximum response time is next business day. 6.3 Defect Resolutions Clevest will use commercially reasonable efforts to provide resolution to Defects submitted by Client, pursuant to the target resolution times detailed below. In all cases, target resolution times are predicated on the assumption that the reported Defects are reproducible within Clevest's systems environment, and that they do not involve Defects due to third -party software and /or hardware. Defects that are not reproducible either in Client's or Clevest's environment will be monitored for further information, but it is understood that target resolution times do not apply. Target resolution times also do not apply for Defects that are reproducible only in Client's environment, but not in Clevest's. Depending upon the Defect, Clevest may propose to add instrumentation to the Licensed Software to assist in determining the nature of the Defect's root cause to facilitate Defect resolution. Client agrees that such instrumentation is required as part of the problem analysis, and any delays in approving their deployment will delay the resolution of those Defects. Defect resolutions that require software and /or database changes will be provided in the form of an Upgrade, to be delivered to the Client. Target resolution times begin when Clevest has clarified and confirmed the Defect with Client, and end upon the delivery of the Upgrade to the Client. Installation of the Upgrade into the Client's Sandbox and Production systems is not within the scope of target resolution times and the scope of this Support and Maintenance Agreement. The Client shall be responsible for installation of the Upgrade into their environments unless such work is covered under a separate Statement of Work pursuant to the Professional Services Agreement forming part of this Agreement. Severity Level Clevest Target Response and Resolution Status Updates Times Severity Level 1. The Defect is having a critical impact on Response time — 1 hour 24x7 Status updates will be provided on an Client's ability to conduct business in that the Licensed Resolution plan— 1 day ongoing basis, as required. Software is entirely inoperable, or database corruption has Target resolution — 3 days occurred, and no procedural workaround exists. Severity Level 2. The Defect is having a severe impact on Response time — 1 hour during business hours Status updates will be provided daily. Client's ability to conduct business, however, major business Resolution plan — 2 days operations can continue. Procedural work - arounds do not Target resolution — 10 days exist. Severity Level 3. The Defect is having a moderate impact Target resolution - next maintenance release None. on Client's business that involves partial, non - critical functionality loss. Procedural work - arounds exist. 6.4 Version Life All Versions of the Licensed Software that are deployed either at the Sandbox or in Production are supported for the duration of the Support and Maintenance Agreement, however Defect resolution may require Client to deploy an Upgrade to a new version of the Licensed Software. 6.5 Upgrades Client shall be entitled to receive all Upgrades to the Licensed Software that are released by Clevest while the Client is paying for Maintenance. RFP 5821 Page 7 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 6.6 6.7 EXHIBIT 5 Clevest will schedule a semi - annual software Upgrade, incorporating resolutions to Defects and functional enhancements. At Clevest's sole discretion, the software Upgrades may be skipped or deferred to allow sufficient time to incorporate desired Defect resolutions and functionality. If an Upgrade contains functional enhancements to modules for which Client has not purchased a valid License or contains new modules which Client has not purchased, Client shall not have access to such functionality unless such modules are purchased by Client at Clevest's then - current prices. Unless otherwise agreed between the parties pursuant to an order for professional services pursuant to the Professional Services Agreement forming part of this Agreement, Client shall be responsible for deploying any such upgrades to the Client's Sandbox and Production environments, including product and database migration. Client acknowledges and agrees that, in the event that the Licensed Software includes Customizations, additional professional services may be required to test the new version of the Licensed Software so that it functions with such Customizations, and that such professional services are not included as part of the Maintenance to be provided by Clevest under this Support and Maintenance Agreement, unless this Agreement has been specifically extended to include such Customizations. Deployment of Upgrades Clevest will provide Upgrades in a format or package with sufficient instructions such that suitably qualified Client or third party personnel can execute and deploy the Upgrade without the direct involvement of Clevest. After - business hours and weekend support for deployment either to the Sandbox or Production environments are not included as part of the scope of this Agreement. The Client can submit a request for additional services to Clevest which may be negotiated as part of a Statement of Work under the Professional Services Agreement. Third -Party Dependencies (a) Maintenance does not cover resolution of Defects which result from: Third party software or hardware Any unauthorized modification to the Licensed Software database schema The combination of the Licensed Software with another product or products provided by Client that have not been approved by Clevest or in hardware or an operating environment that is not controlled by Clevest Any non - Clevest direct modification of the data in the database by means outside of the Licensed Software, or Use of the Licensed Software by Client which is not in accordance with the Documentation. (b) Third -party software includes (but is not limited to): Oracle database Microsoft Internet Explorer Microsoft IIS, Microsoft Office Microsoft Windows Operating Systems Microsoft SilverLight Microsoft . NET Framework (c) Clevest will only support the Licensed Software on platforms for which all components are supported RFP 5821 by their respective vendors, under standard conditions, as of the date the support request is made by Client to Clevest. (d) The list of platforms on which each version of the Licensed Software is qualified is decided solely by Clevest. (e) Clevest will only provide support on platforms designated in the Documentation. While it is understood that Clevest does not have responsibility for the set -up and maintenance of third -party software and hardware, Clevest can make recommendations on their parameter settings and configurations, which the Client may review and adopt. Should any recommendation conflict with the Client's adopted settings /configurations, and such situations result in a detrimental product impact to either functionality, performance, or usability, Clevest shall bear no responsibility to support reported Defects that arise from such settings /configurations. The Client will advise Clevest of any proposed changes to settings and configurations for third -party software and hardware in advance. While Clevest will make reasonable commercial efforts to provide resolutions to Defects with the same third -party software versions as the production system, it is understood that some resolutions may require upgrades to third -party software. In these cases, Clevest will notify the Client of this requirement, and the Client will make arrangements for such upgrades at its own cost. New versions of the Licensed Software may require upgrades to third -party software and hardware. Clevest will advise the Client of these requirements. Should the Client choose to deploy the new versions, the Client will make arrangements for such third -party upgrades at its own cost. 6.8 External Support Dependencies The Client will provide Clevest with VPN accounts and SecurelDs (or other mutually negotiated security and remote access tools) to enable two concurrent users to remotely access both the Sandbox and Production environments. It is understood that unavailability of remote access will result in degraded support levels from Clevest. Should problems arise with accessing the systems remotely during business hours, the Client will provide access to support personnel to resolve them. After - business hours support arrangements will be provided by the Client only when agreed to with Clevest on a case -by -case basis. Clevest will have contacts and access to third -party support, as arranged by the Client, for support. The Client will bear the cost of any contact by Clevest with such personnel, including help desk and after - business hours support as required. 6.9 Client Responsibilities The Client shall provide on Clevest's request periodic database export files from Production and Sandbox for Clevest's use within two (2) business days of a request from Clevest. The Client shall designate at least one, but not more than three, support contacts for the purposes of communicating support issues with Clevest. Page 8 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 The Client shall endeavor to ensure that the issues escalated to Clevest are issues primarily attributed to the operation of the Licensed Software. Clevest reserves the right to decline to continue to provide support for any issue that it deems to not be primarily derived from the operation of the Licensed Software. ADDITIONAL SERVICES Additional services may be requested by the Client from time to time. The Client must provide prior written request for additional services and such services shall be provided pursuant to the Professional Services Agreement forming part of this Agreement. Additional Services include but are not limited to: After -hours support Clevest may provide after -hours support for the Licensed Software via telephone, email, or on -site personnel. After -hours support for Severity 1 issues is provided as part of basic maintenance. Software Enhancements The parties may agree to enhancements to the software that will be developed by Clevest on a time and materials basis. Software Installations and Database Clevest may provide the work to install software upgrades including Defect fixes, and perform database Migrations on Production migrations, directly on the target environments. Environment Application Monitoring General application health monitoring includes checking presence and application response times are within acceptable limits. Infrastructure Monitoring Infrastructure monitoring includes checking the status, performance, CPU utilization, disk and memory capacity, and availability of the Licensed Software application infrastructure. In particular, infrastructure components include database server(s), web /application server(s), server hardware, system software, application software, and network infrastructure. Infrastructure Maintenance Infrastructure maintenance includes building, setup, installing, testing, supporting, repairing, upgrading, patching, tuning, backup and recovery, or replacing the Licensed Software application infrastructure servers and associated hardware, application software, and system software. Outage Management In the case of planned or unplanned outages of the Licensed Software system, Clevest may be requested to manage certain aspects of the outage including user notification, infrastructure and application restart, and infrastructure and application monitoring. Training Clevest may be requested to provide end user, administrator, or other training. Consulting Clevest may be requested to consult or advise on the Licensed Software, application enhancements, the Licensed Software infrastructure, additional modules, related business processes, or other topics. Data Entry Clevest may be requested to provide data entry services. 8. OTHER TERMS 8.1 Order of Precedence. In the event of any inconsistency between the terms of the Software License Agreement forming part of this Agreement and the terms of this Support and Maintenance Agreement, the terms of this Support and Maintenance Agreement shall control only with respect to determining Clevest's obligations with respect to providing Maintenance. In all other cases, such Software License Agreement will prevail. 8.2 Source Code Escrow. For the protection of Client's rights under this Agreement, Clevest shall establish, if specified on the cover page of this Agreement or otherwise upon request by Client, a source code escrow for the benefit of Client with an escrow agent selected by Clevest pursuant to which Clevest shall deposit the human readable source code for the Licensed Software. The terms of the source code escrow shall be substantially as set forth in a form of escrow agreement to be provided by Clevest, and shall be mutually acceptable to the parties. Client shall pay the amount set forth on the cover page of this Agreement for the escrow agent's fee and all other costs and expenses associated with the source code escrow. Clevest may modify such fees from time to time by providing at least sixty (60) days written notice to Client. 9. TERMINATION 9.1 Termination by Clevest. Notwithstanding anything to the contrary in this Support and Maintenance Agreement, Clevest, by written notice to Client, may terminate this Support and Maintenance Agreement or suspend Clevest's further performance of Maintenance without terminating this Support and Maintenance Agreement upon the occurrence of any of the following: (i) Client terminates or suspends doing business; (ii) Client becomes subject to any bankruptcy or insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing thereof), or becomes insolvent, becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment for the benefit of creditors; (iii) Client fails to pay to Clevest any amount when due hereunder and fails to remedy such failure within fifteen (15) days after receiving written notice thereof from Clevest, or (iv) Client commits a material breach or failure of any of its other obligations under this Support and Maintenance Agreement and, except for any breach of Client's confidentiality obligations or a breach of Clevest's Intellectual Property Rights, has not cured such breach (or, if the breach or failure is such that its cure would take a longer period, has not commenced and diligently proceeded to cure such breach or failure) within fifteen (15) days after receiving written notice from Clevest specifying such breach or failure. 9.2 Termination by Client. Notwithstanding anything to the contrary in this Support and Maintenance Agreement, Client, by written notice to Clevest, may terminate this Support and Maintenance Agreement or suspend Client's further performance of Maintenance without terminating this Support and Maintenance Agreement upon the occurrence of any of the following: (i) Clevest terminates or suspends doing business; (ii) Clevest becomes subject to any bankruptcy or insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing thereof), or becomes insolvent, becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment for the benefit of creditors; or (iii) Clevest commits a material breach or failure of any of its obligations under this Support and Maintenance Agreement and, except for any breach of Clevest's confidentiality obligations, has not cured such breach (or, if the breach or failure is such that its cure would take a longer period, has not commenced and diligently proceeded to cure such breach or failure) within fifteen (15) days after receiving written notice from Client specifying such breach or failure. RFP 5821 Page 9 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 9.3 Survival. Sections 9.4, 10.1 and 11.1 and such other provisions as may reasonably be expected to remain in force will survive the expiry or termination of this Support and Maintenance Agreement and will remain in full force and effect following such expiry or termination. The expiry or termination of this Support and Maintenance Agreement will not affect the rights of any party to make a claim for damages arising from a breach of any provision of this Support and Maintenance Agreement which occurred prior to such expiry or termination. 9.4 Obligations on termination. Upon any expiration or termination of this Support and Maintenance Agreement, (i) Client will immediately pay to Clevest any amounts then due to Clevest pursuant to the terms of this Support and Maintenance Agreement and (ii) each party will return to the other party any and all Confidential Information of the other party provided in connection with this Support and Maintenance Agreement in its possession or control and, upon request from the other party, each will deliver a certificate of an officer of the party certifying the completeness of same. 10. AUDIT 10.1 Audit. During the term of this Support and Maintenance Agreement and for twelve months after termination or expiry, Client will permit Clevest and its representatives and agents to conduct periodic audits of Client's relevant books, records and computer systems in order to verify Client's compliance with the terms and conditions of this Support and Maintenance Agreement. Such audits will be conducted at Client's place of business and /or where the Licensed Software is or was located during Client's normal business hours with reasonable advance notice. Clevest will pay for the cost of the audit unless Clevest reasonably determines from the audit that Client has materially breached this Support and Maintenance Agreement, in which case Client will pay the cost of the audit. Client will immediately reimburse Clevest for all additional amounts owed to Clevest as determined by the audit, together with interest thereon as provided for in this Support and Maintenance Agreement. The remedies provided to the Clevest under this Section are not exclusive and any such remedy will be in addition to and not limit any other remedy which Clevest is entitled to seek at law, in equity, by statute or under this Support and Maintenance Agreement. 11. GENERAL 11.1 Clevest's General Terms and Conditions attached hereto are part of this Support and Maintenance Agreement and are incorporated by this reference. Such General Terms and Conditions shall survive any termination or expiry of this Support and Maintenance Agreement. End of Support and Maintenance Agreement RFP 5821 Page 10 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 EXHIBI PROFESSIONAL SERVICES AGREEMENT DEFINITIONS "Agreement" means the terms and conditions contained in this Professional Services Agreement, together with the terms and conditions in the Software License Agreement, Support and Maintenance Agreement, the General Terms and Conditions and the cover page to which this Professional Services Agreement is attached or incorporated by reference. SCOPE OF SERVICES 2.1 Assignments. Clevest agrees to provide the professional services ( "Assignments ") described on separately executed assignment orders (each, a "Statement of Work "), as may from time to time be issued hereunder. Each Statement of Work will be effective, incorporated into and form a part of this Professional Services Agreement, when mutually accepted and duly executed by both parties. 2.2 Statement of Work. Each Statement of Work will define a specific Assignment authorized by Client, the delivery schedule or term, the applicable pricing, and other appropriate terms. 2.3 Precedence. Each Statement of Work will be governed by the terms of this Professional Services Agreement. In the event of any conflict between this Professional Services Agreement and a Statement of Work, the provisions of the Statement of Work will prevail. 2.4 Effect of Professional Services Agreement and Statements of Work. By entering into this Professional Services Agreement, Client is not committing or obligating itself to use the services of Clevest. No work or charges are or will be authorized hereunder unless and until authorized in writing by a Statement of Work executed by both parties. 3. PERFORMANCE OF ASSIGNMENTS 3.1 Project Managers. For each Statement of Work, each party will designate a project manager whose duties will be to act as the liaison for communications between the parties. Each party may change its project manager at any time by written notice to the other party. 3.2 Schedule. Clevest will begin to perform each Assignment on or before the date specified in the applicable Statement of Work. Clevest will use reasonable commercial efforts to complete each Assignment by the dates provided in such Statement of Work. However, Client acknowledges that the dates specified in a Statement of Work are the best reasonable estimates of Clevest for the time required to complete the Assignment based on the information available to Clevest at the time of entering into a Statement of Work. The dates upon which Clevest is required to start or complete an Assignment will be automatically postponed to the extent that Clevest is delayed by the act or failure to act of Client, or by causes beyond Clevest's reasonable control, or by design, programming, scheduling or technical problems not known to Clevest on the date of any Statement of Work. The sole effect of any delay by Clevest to perform the Assignment will be a corresponding delay in the time for payment by Client. 3.3 Changes in Scope of Work. Requests by Client for changes to or modifications in the scope of the services specified in a Statement of Work will be subject to the following procedure: (a) Client will advise Clevest in writing of the desired change or modification, in such detail and with such additional information as Clevest may reasonably request; (b) Clevest will notify Client within a reasonable period of time of Clevest's estimate of the impact of the desired changes or modifications on the total cost of the Assignment, the time frame for completion and any further aspects that, in the opinion of Clevest, are likely to be affected by the desired changes; and (c) any changes or modifications will be implemented only with the prior written approval of each party's project manager. 3.4 Client Facilities and Assistance. To the extent required by Clevest, Client will at its own cost make available to Clevest certain of its facilities, computer resources, software programs, personnel, and business information as will be required to perform any Assignment hereunder. Without limiting the generality of the foregoing, Client will perform such additional responsibilities, if any, as may be described in a Statement of Work. If Client fails to fulfill its responsibilities in a proper and timely manner and such failure is a direct cause of a delay in the performance of the Assignment or results in additional cost to Clevest, then Clevest will provide to Client a written specification of such delay and Clevest's estimate of the resulting cost (if any). Client will pay to Clevest the cost at Clevest's then current standard time and material rates and charges and any time limits for performance will be extended by a period equal to the length of the delay. 3.5 Subcontracting. Clevest will have the right to use third parties in performance of its obligations and services hereunder and, for the purposes of this Professional Services Agreement, all references to Clevest or its employees will be deemed to include such third parties. 4. PRICE AND PAYMENT 4.1 Prices of Assignments. The services provided by Clevest will be at the pricing set forth in the applicable Statement of Work. In the event a Statement of Work does not reference any fixed pricing, such services will be performed at Clevest's then - current standard time and material rates and charges. To the extent that any Statement of Work contains estimates of pricing or Clevest otherwise provides a pricing estimate to Client, Client acknowledges that such estimated prices are the best reasonable estimates of Clevest based on the information available to Clevest at the time of providing such estimate and are subject to change at any time. Client acknowledges that such estimated prices may change at any time, including without limitation if Clevest is delayed by the act or failure to act of Client, or by causes beyond Clevest's reasonable control, or by design, programming, scheduling or technical problems not known to Clevest on the date of providing such estimate. 4.2 Expenses. Clevest will be reimbursed by Client for all reasonable travel, food, lodging and other out -of- pocket expenses incurred in performance of a given Assignment. Clevest will submit to Client invoices and supporting documentation acceptable to Client, acting reasonably, for such expenses. If employees of Clevest are required to provide services at locations other than at the premises of Clevest, reasonable expenses will include all reasonable travel, accommodation and food expenses of such employees. 4.3 Invoicing. Clevest will submit invoices for charges and expenses hereunder on a monthly or milestone basis and Client will make payment of each invoice in accordance with the terms of this Agreement. 4.4 Other Services. The provision of any services required by Client outside of the scope of the services specified in a Statement of Work will be billed by Clevest to Client at Clevest's then current standard time and material rates and charges. RFP 5821 Page 11 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 5. PROPERTY RIGHTS. 5.1 Products of Assignments and Clevest Property. Clevest will have exclusive, unlimited ownership rights to all works performed under each Statement of Work and all materials, programs, documentation, designs, information and deliverables prepared hereunder or developed as a result of Assignments, whether prepared or developed by Clevest, Client, or through the collaboration of both parties. Client hereby assigns to Clevest any and all right, title and interest it might have in and to any such materials, programs, documentation, designs, information and deliverables, including without limitation all intellectual property rights therein. Without limiting the foregoing, all systems, programs and specifications, and other materials and hardware owned by Clevest or in the possession of Clevest and used by Clevest in conjunction with the performance of the Assignments hereunder, will continue to belong exclusively to Clevest, whether or not specifically adapted by Clevest for use by Client. Clevest may use in any way which it deems necessary or appropriate any ideas, concepts, know -how or techniques acquired, developed or used by Clevest during the course of this Professional Services Agreement and any Assignment. 5.2 Client Property. Subject to Section 5.1, nothing herein will be construed to restrict, impair or deprive Client of any of its rights or proprietary interest in technology or products that existed prior to and independent of the performance of Assignments or provision of materials by Clevest under this Professional Services Agreement or any Statement of Work. 6. WARRANTIES 6.1 Limited Warranty. Clevest warrants that all Assignments performed under this Professional Services Agreement will be performed in a workmanlike and professional manner in accordance with industry standards. In the event of a breach of this warranty, the sole remedy of Client and sole obligation of Clevest will be to reperform the nonconforming services of an Assignment in accordance with such standards. Clevest will have no obligation to Client for any claim under this Section 6.1 not made within thirty (30) days after the performance of the services giving rise to the claim. 6.2 Exclusion of Other Warranties. THE LIMITED WARRANTY SET OUT IN SECTION 6.1 IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS. EXCEPT FOR THE LIMITED WARRANTY SET OUT IN SECTION 6.1, CLEVEST DISCLAIMS AND CLIENT WAIVES ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON - INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE STATED LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES FOR DAMAGES ARISING OUT OR IN CONNECTION WITH THE ASSIGNMENTS AND THIS MASTER SERVICES AGREEMENT. TERM, TERMINATION AND SUSPENSION OF SERVICES 7.1 Term of Professional Services Agreement. This Professional Services Agreement will commence on the Effective Date and will continue in full force, until terminated by either party as provided herein. 7.2 Term of Statement of Work. Each Statement of Work will remain in effect until (i) it has expired on its own terms, (ii) the Assignment authorized thereunder is completed, or (iii) it is terminated by either party as provided herein. 7.3 Termination. Without limiting the remedies otherwise available under this Professional Services Agreement or at law or equity, this Professional Services Agreement or any Statement of Work hereunder may be terminated prior to expiry or completion in accordance with the following: (a) by either party without cause if at any time there are no committed or active Statements of Work between the parties; (b) y either party if the other party commits a material breach or failure of any of its obligations under this Professional Services Agreement and, except for any breach of a party's confidentiality obligations or a breach by Client of Clevest's intellectual property rights, has not cured such breach (or, if the breach or failure is such that its cure would take a longer period, has not commenced and diligently proceeded to cure such breach or failure) within fifteen (15) days after receiving written notice from the non - breaching party specifying such breach or failure: or (c) y either party if the other party becomes subject to any bankruptcy or insolvency proceeding under federal or provincial law (unless removed or dismissed within sixty (60) days from the filing thereof), or becomes insolvent, becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment for the benefit of creditors. Notice of termination of any one or more Statement(s) of Work will not be considered notice of termination of this Professional Services Agreement unless specifically stated in the notice. 7.4 Effect of Termination. Upon termination or expiry of this Professional Services Agreement or any Statement of Work: (a) Client will pay all sums owing to Clevest under this Professional Services Agreement in accordance with its terms; and (b) each party will return to the other party any and all applicable Confidential Information of the other party received in connection with this Professional Services Agreement in its possession or control and, upon request from a party, the other party will deliver a certificate of an officer of the party certifying the completeness of same. 7.5 Survival. Sections 7.4 and 8.1 and such other provisions as may reasonably be expected to remain in force will survive the expiry or termination of this Professional Services Agreement and will remain in full force and effect following such expiry or termination. The expiry or termination of this Professional Services Agreement will not affect the rights of any party to make a claim for damages arising from a breach of any provision of this Professional Services Agreement which occurred prior to such expiry or termination. 7.6 Suspension of Services. If Client fails to pay Clevest as required by this Professional Services Agreement, without due cause, Clevest will be entitled to immediately suspend all activity relating to this Professional Services Agreement upon delivery of written notice to that effect to Client, and may pursue any other remedies which it may have under this RFP 5821 Page 12 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 Professional Services Agreement or otherwise at law. If any dispute arises between Client and Clevest with respect to Clevest's performance of Assignments or otherwise under this Professional Services Agreement, Clevest and Client will promptly attempt to resolve such dispute. If such a dispute arises, Client will not be entitled to withhold timely payment under this Professional Services Agreement pending resolution of such a dispute. If such payments are made on a timely basis or, if the parties then agree in writing that the payments may be made to an escrow account, are deposited into an escrow account, Clevest will not reduce or suspend services pending resolution of such a dispute. 8. GENERAL 8.1 Clevest's General Terms and Conditions attached hereto are part of this Professional Services Agreement and are incorporated by this reference. Such General Terms and Conditions shall survive any termination or expiry of this Professional Services Agreement. End of Professional Services Agreement RFP 5821 Page 13 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 EXHIBI GENERAL TERMS AND CONDITIONS DEFINITIONS "Agreement" means the terms and conditions contained in these General Terms and Conditions, together with the terms and conditions in the Software License Agreement, Support and Maintenance Agreement and the Professional Services Agreement and the cover page to which these General Terms and Conditions are attached or incorporated by reference. CONFIDENTIAL INFORMATION 2.1 Confidentiality. Each party will keep strictly confidential and will not disclose or use for any purpose other than for performing its obligations under this Agreement any Confidential Information (as hereafter defined) of the other party. Except as expressly provided in this Agreement, neither party will obtain any interest in the other party's Confidential Information by reason of this Agreement or by reason of the disclosure of such Confidential Information pursuant to this Agreement. Each party will take the steps reasonably necessary to protect the confidentiality of the other party's Confidential Information. Each party will provide the other party's Confidential Information at least the same level of protection that it provides for its own Confidential Information (except that such level of protection will not be less than a reasonable level). Each party may disclose the other party's Confidential Information only to its directors, officers, agents, employees and professional advisors who have a need to know such Confidential Information for the performance of this Agreement, provided that such directors, officers, agents, employees and professional advisors are bound by obligations of nondisclosure and non -use substantially the same in scope as those contained in this Section 2. In the event an agent or professional advisor is a competitor of the party disclosing its Confidential Information, the party receiving the Confidential Information shall not disclose such information to the competitor without obtaining the disclosing party's prior written consent to do so. Nothing in this Section 2 will restrict a party's use or disclosure of its own Confidential Information. 2.2 Definition of "Confidential Information ". "Confidential Information" will mean any information, technical data or know -how including, but not limited to, that which comprises or relates to the other party's confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, customer names and other information related to customers, price lists, pricing policies and financial information or other business and /or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine - readable form and any analyses, compilations, studies or documents. Confidential Information also includes the terms of this Agreement. 2.3 Exceptions. The foregoing restrictions of confidentiality and non- use will not apply to information that: (a) is or becomes publicly available without breach of this Agreement; (b) is disclosed to a party by a third party, provided such information was not obtained by said third party, directly or indirectly, from the other party on a confidential basis; C (c) is already known to a party; or (d) is independently developed or discovered by a party without access to Confidential Information of the other party. 2.4 Permitted Disclosures. Notwithstanding any provisions of this Article, either party may disclose the Confidential Information of the other party to applicable regulatory authorities or if required by judicial or administrative process or timely disclosure requirements imposed by law or by stock exchange policies, provided that such party first provides to the other party prompt notice of such required disclosure, maintains confidentiality to the greatest extent permissible and takes such steps as may be reasonable in the circumstances to allow the other party to seek a protective order with respect to the confidentiality of the information required to be disclosed. 2.5 Injunction. The parties acknowledge and agree that the breach by either party of any of the provisions of this Section 2 would cause serious and irreparable harm to the other party that could not adequately be compensated for in damages and, in the event of a breach by either party of any of such provisions, the breaching party hereby consents to an injunction being issued against it restraining it from any further breach of such provision, but such action will not be construed so as to be in derogation of any other remedy that the other party may have in the event of such a breach. 2.6 Survival of Confidentiality Obligations. The obligations of confidentiality provided for in this Section 2 will extend for five years after the date of termination or expiry of this Agreement, except with respect to trade secrets, for which such obligations will continue in perpetuity. 3. PAYMENT AND TAXES 3.1 Invoicing and Payment. All invoices by Clevest to Client will be payable by Client to Clevest within thirty (30) days after completion of services, or receipt of invoice, whichever is later. If payment is not timely made; 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. 3.2 Taxes. The amounts provided for in this Agreement are exclusive of all sales, use, goods and services, value added and other similar taxes, tariffs or duties, all of which will be paid by Client unless client is tax - exempt, excluding tax payable on income or capital of Clevest,. Concurrently with payments to Clevest hereunder, Client will remit to Clevest all taxes due in respect of the amounts payable by Client hereunder. If any taxes are required to be withheld, then Client will pay Clevest an amount such that the net amount received by Clevest after withholding of such taxes will equal the amount that would have been otherwise payable under this Agreement. 3.3 Currency. In this Agreement, all references to money or payments will mean the lawful currency set forth on the cover page of this Agreement and, unless otherwise expressly agreed to in writing, all payments made under this Agreement will be made in that currency. RFP 5821 Page 14 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 4. LIMITATION OF LIABILITY AND INSURANCE 4.1 Limitation of Liability. NOTWITHSTANDING ANY TERM IN THIS CONTRACT, CLEVEST'S LIABILITY TO CITY OF DENTON OR ITS INSURERS FOR ANY LOSS OR DAMAGE REGARDING THIS CONTRACT SHALL BE LIMITED AS FOLLOWS: 1) FOR THOSE CLAIMS COVERED BY CLEVEST'S INSURANCE WHERE CITY OF DENTON HAS BEEN NAMED AS AN ADDITIONAL INSURED UPON THE APPLICABLE INSURANCE POLICY, CLEVEST'S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF THE APPLICABLE INSURANCE POLICY; 11) FOR ALL OTHER CLAIMS EXCEPT THOSE ARISING AS A RESULT OF CLEVEST'S VIOLATION OF APPLICABLE LAW OR PATENT INFRINGEMENT, CLEVEST'S LIABILITY SHALL IN NO EVENT EXCEED $1,000,000, WHETHER AS A RESULT OF BREACH OF CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. 4.2 Damages Exclusions. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS REVENUE, LOST PROFITS, ECONOMIC LOSS, PECUNIARY LOSS, FAILURE TO REALIZE EXPECTED SAVINGS OR LOSS OF BUSINESS OPPORTUNITY), LOSS OF DATA OR PROCUREMENT COSTS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.3 Application of Limitations and Exclusions. Except as otherwise explicitly specified, the limitations in the foregoing Sections 4.1 and 4.2 will apply to all causes of action and regardless of the form of action including, but not limited to, breach of contract, strict liability, tort including, but not limited to, negligence and any other legal or equitable theory. 4.4 Insurance. Clevest shall provide, maintain and pay for liability insurance coverage as required in Exhibit F of this agreement. Clevest shall supply Client with a certified copy of the policy of insurance or a certificate of insurance in which reasonable detail of the required coverage are specified. Clevest shall be responsible for any deductible amounts under the policy except where such amounts may be excluded from Clevest's responsibility. 4.5 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, Clevest, 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, Clevest, Clevest's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. CLEVEST 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 CLEVEST, OR CLEVEST'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF CLEVEST'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR CLEVEST (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 5. MISCELLANEOUS 5.1 Authorization. Each party represents and warrants to the other that it has full authorization to enter into and fully perform the terms of this Agreement, that the terms of this Agreement are valid and binding against it, and that entering into and performing this Agreement will not constitute a violation of any law, regulation, contract, or understanding applicable to such party. 5.2 Advertising. Neither party will use the other party's name or trademarks, refer to or identify the other party in any advertising or publicity releases or promotional or marketing correspondence to others, without such other party's written approval. 5.3 Non - Solicitation. During the term of this Agreement and for a period of six months after termination or expiry of this Agreement, neither party will, without the prior written approval of the other party, directly or indirectly solicit the employment, services or assistance of any person employed or engaged by the other party. For clarity, the term of this Agreement shall expire and terminate when each and every one of the License Agreement, Support and Maintenance Agreement and Professional Services Agreement attached hereto have each either expired or terminated. 5.4 Compliance with Policies. Each party agrees to comply at all times with the other party's reasonable rules and regulations regarding safety, security and conduct, of which such party has received prior notice. 5.5 Counterparts. This Agreement may be executed in one or more counterparts (including, but not limited to, by fax or other means of electronic communication producing a printed copy), each of which will be deemed an original, but all of which together will constitute the same instrument. 5.6 Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favour of the other under this Agreement. 5.7 Remedies not Exclusive. Except for those remedies expressly described as sole, the remedies provided to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which any of the parties is entitled to seek at law, in equity or by statute 5.8 Freedom of Action. This Agreement will not be construed in any way to limit Clevest's right to grant any right or license to use, distribute or sublicense any of Clevest's products or related services and any associated documentation. Except as expressly provided in this Agreement, this Agreement does not convey to Client any rights or interests with respect to any current or future product or service. RFP 5821 Page 15 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 5.9 Time. Time is of the essence in this Agreement. 5.10 Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement. 5.11 Relationship. The parties to this Agreement are acting as independent contractors to each other, and nothing in this Agreement will accord any status to a party of being the employee, partner, joint venturer, franchisee or agent of the other, with respect to this Agreement. Nothing in this Agreement will make or be construed to make Clevest and Client partners or agents of each other or to create any other relationship by which the acts of any party may bind the others or result in any liability to the other. 5.12 Assignment. Neither this Agreement nor any of the rights or obligations under this Agreement may be assigned by either party without the prior written consent of the other party, except that a party may, without consent, but upon notice to the other party, assign this Agreement (in its entirety) to a subsidiary or affiliate or to an entity which acquires all or substantially all of the assets and business of the assigning party by merger, sale of assets or otherwise and such assignee agrees in writing with the other party to be bound by the terms and conditions of this Agreement. Any assignee of Client under this Agreement may assume this Agreement only in respect of the specific business of Client for which Client held this Agreement immediately prior to the assignment, and any additional or other use by such assignee will be subject to Clevest's prior written consent and payment of additional License Fees (as defined in the License Agreement forming part of this Agreement) and Support and Maintenance Fees (as defined in the Support and Maintenance Agreement forming part of this Agreement). Any assignment by Client occurring by operation of law such as on a bankruptcy or amalgamation will be deemed an event of default under this Agreement, entitling Clevest to exercise all of the rights and remedies it would otherwise be entitled to exercise for an assignment made without consent. RFP 5821 Page 16 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 T5 5.13 Export Controls. Client will comply with all export laws, restrictions and regulations having application to it, whether of Canada, the 5.20 No Waiver. No failure to exercise and no delay in exercising, on United States or any foreign agency or authority, and has not and the part of either party, any right, power or privilege under this will not export, re- export or otherwise transmit, download or use, Agreement will operate as a waiver thereof, nor will any single directly or indirectly, any software, information, data, or other or partial exercise of any right, power or privilege under materials received under this Agreement in violation of any such this Agreement preclude further exercise of the same right or applicable restrictions, laws or regulations. the exercise of any other right under this Agreement, by statute, at law or in equity. 5.14 Force maieure. Neither party will be liable for any delay or failure to perform any provision of this Agreement if such delay or failure 5.21 Severability. If any provision of this Agreement is held invalid or to perform is caused by any factor beyond the reasonable control otherwise unenforceable, the enforceability of the remaining of the party, provided that in no event shall lack of financing or provisions will not be impaired thereby and, in such an credit be considered to be beyond the reasonable control of a event, such provisions will be interpreted so as to best party, or the failure of the other party to comply with its obligations accomplish the intent of the parties within the limits of and responsibilities under this Agreement. This Section will not applicable law; provided, however, that in the event such apply to any failure to make any payment when due. invalidity, illegality or unenforceability materially and adversely alters the rights of a party under this Agreement, the parties will 5.15 Wording. Wherever the singular or masculine form is used in this promptly negotiate in good faith an acceptable replacement Agreement, it will be construed as the plural or feminine or neuter provision. form, as the case may be, and vice versa, as the context or the parties require. 5.22 Enurement. Subject to the restrictions on transfer contained in this Agreement, this Agreement will enure to the benefit of and 5.16 Headings. The headings in this Agreement are solely for be binding on the parties and their respective heirs, executors, convenience of reference and will not be used for purposes of administrators, successors and assigns. interpreting or construing the provisions hereof. 5.23 Language of Agreement. At the request of the parties hereto, 5.17 Notices. All notices required or permitted under this Agreement this Agreement has been drafted in the English language only. will be given in writing and sent by facsimile transmission, or sent A la demande des parties aux presentes, cette Convention a by a commercial courier service, or hand - delivered to the address ete redige en langue anglais seulement. set forth for each party on the cover page of this Agreement. 6. SURVIVAL All notices will be deemed to have been received (i) when delivered, if sent by commercial courier service or hand - delivered, 6.1 Survival. These General Terms and Conditions shall survive and (ii) upon completion of successful transmission (as evidenced any termination or expiry of this Agreement. by the confirmation of transmission), if sent by fax. Any party may change its address for notices from time to time by written notice in accordance with this Section. End of General Terms and Conditions 5.18 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all written or oral prior agreements or understandings with respect thereto. There is no representation, warranty, collateral term or condition or collateral agreement affecting this Agreement, other than as expressed in writing in this Agreement. Any purchase order or other instrument of Client accompanying any documents delivered in connection with this Agreement or a Client payment is for Client's internal use only and its terms will not alter or amend the terms of this Agreement. 5.19 Applicable Law. This 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. RFP 5821 Page 17 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 EXHIBIT F INSURANCE REQUIREMENTS AND WORKERS' COMPENSATION 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. Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [XI A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, 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. [Xj 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: RFP 5821 Page 15 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 • any auto, or named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against • all owned hired and non -owned autos. the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction IN Workers' Compensation Insurance projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with Contractor shall purchase and maintain Workers' §406.096 of the Texas Labor Code and rule 28TAC Compensation insurance which, in addition to 110.110 of the Texas Workers' Compensation meeting the minimum statutory requirements for Commission (TWCC). 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 RFP 5821 Page 16 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 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, 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 RFP 5821 Page 15 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 EXHIBIT 5 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 5821 Page 16 DocuSign Envelope ID: 372C048D- AA2A- 4C3C- AA69- 72EEABB1CFF8 E X H 1991 }BIT 5 RFP 5821 Mobile Workforce Management Software Solution Clevest Solutions Inc. Richmond, BC Canada Section A - Impelmentation Services Section B - Annual Costs ITEM UOM Description Year 1 Proposed Year 3 Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: 1 $187.50 Perpetual Licensing Costs Number of ITEM UOM Description of Requested Services Lump Sum - CALENDA $130,000.00 $0.00 $0.00 Cost of Service R Days to Work. The City estimates approximately 15 office and 25 field users of the software. Complete LS Annual Maintenance & Support Costs $26,000.00 $26,000.00 Project 1 LS Kickoff $10,000.00 10 2 LS Integration (OMS, GIS and CIS) $40,000.00 60 4 LS Integration (Cityworks) $30,000.00 30 5 LS DME Staff Training $10,000.00 10 6 LS DME On -site Testing $20,000.00 20 7 LS Roll Out $15,000.00 15 Section B - Annual Costs ITEM UOM Description Year 1 Year 2 Year 3 Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: 1 $187.50 Perpetual Licensing Costs 8 LS Pricing shall include annual site licensing for all users, as described in Exhibit 3 - Scope of $130,000.00 $0.00 $0.00 Work. The City estimates approximately 15 office and 25 field users of the software. 9 LS Annual Maintenance & Support Costs $26,000.00 $26,000.00 $26,000.00 Section C - Additional Services and Information: ITEM UOM I DESCRIPTION OPT1 I HR Optional Remote Support (10 days to 3 months post implementation) Hourly Rate: 1 $187.50 EXHIBIT 5 Certificate Of Completion Envelope Number: 372C048DAA2A4C3CAA6972EEABB1CFF8 Subject: Please DocuSign: 5821 Contract Documents for Mobile Workforce Management System Source Envelope: Document Pages: 24 Signatures: 4 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Record Tracking Status: Original 8/31/2015 1:48:52 PM PT Signer Events Rebecca Hunter rebecca.hunter @cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Victor Holysh victor.holysh @clevest.com CFO Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 8/31/2015 2:03:42 PM PT ID: c6746b2b- 008b- 4f4c- a3b8- 60e487389dba John Knight john.knight @cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Julia Klinck julia.klinck@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: George Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) Holder: Rebecca Hunter rebecca.hunter @cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 EDocuSigned by: DB36206A75A247A . Using IP Address: 192.139.123.34 by: Ell—Signed ohn Knight C821996C2A2B439... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Rebecca Hunter rebecca.hunter @cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 8/31/2015 1:55:16 PM PT Viewed: 8/31/2015 1:55:28 PM PT Signed: 8/31/2015 1:56:05 PM PT Sent: 8/31/2015 1:56:07 PM PT Viewed: 8/31/2015 2:03:42 PM PT Signed: 8/31/2015 2:06:16 PM PT Sent: 8/31/2015 2:06:20 PM PT Viewed: 8/31/2015 2:06:57 PM PT Signed: 8/31/2015 2:08:11 PM PT Sent: 8/31/2015 2:08:13 PM PT Viewed: 8/31/2015 2:25:29 PM PT ' StCUfttb EXHIBIT 5 Signer Events Signature Electronic Record and Signature Disclosure: Not Offered ID: Jennifer Walters jennifer.walters @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: In Person Signer Events Signature Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Carbon Copy Events Status Charleta Gilbreath charleta .gilbreath @cityofdenton.com COPIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Julia Klinck julia.klinck@cityofdenton.com �'I E Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Robin Fox Robin.fox @cityofdenton.com PIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Jerry Fielder jerry.fielder @cityofdenton.com Security Level: Email, Account Authentication (Optional) Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 8/31/2015 2:06:18 PM PT Sent: 8/31/2015 2:06:18 PM PT Sent: 8/31/2015 2:08:13 PM PT EXHIBIT 5 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered ID: Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Robert Dreskai robert.dreskai @clevest.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 8/31/2015 2:08:13 PM PT Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Victor Holysh EXHIBIT 5 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through your DocuSign user account all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. EXHIBIT 5 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: kevin.gunn @cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e -mail address where we should send notices and disclosures electronically to you, you must send an email message to us at kevin.gunn @cityofdenton.com and in the body of such request you must state: your previous e -mail address, your new e -mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e -mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e -mail to kevin.gunn @cityofdenton.com and in the body of such request you must state your e -mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -786, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Community Improvement CM/ ACM: John Cabrales Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a funding agreement between the City and Fred Moore Day Nursery School to provide Community Development Block Grant funds for improvements to the facility at 821 Cross Timber Street, Denton, Texas; authorizing the expenditure of funds therefore, not to exceed $108,927; and providing for an effective date. BACKGROUND Fred Moore Day Nursery School (FMDNS) is a nonprofit childcare facility providing low -cost day care for low -to- moderate income families. FMDNS will serve a minimum of 62 children ranging in age from six (6) weeks through five (5) years of age. Parents must be working, going to school full time, or a combination of both to be eligible. FMDNS is open from 6:30 am to 6:00 pm, Monday through Friday and licensed by the Texas Department of Protective and Regulatory Services. City of Denton Community Development Block Grant (CDBG) funds will be used to complete the following facility improvements: • Restroom and plumbing improvements, • Painting and sealing the gymnasium walls, Gym floor installation, and • Installation of commercial playground equipment. The facility and surrounding property is currently owned by FMDNS. If, for any reason, FMDNS were to stop providing daycare services to low and moderate income families, the property would revert back to the Denton Independent School District. OPTIONS Approval or disapproval of the ordinance authorizing the City Manager to execute the agreement with Fred Moore Day Nursery School. RECOMMENDATION The Community Development Advisory Committee recommended funding for this project as part of the City's 2015 Action Plan for Housing and Connnunity Development. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -786, Version: 1 ESTIMATED SCHEDULE OF PROJECT • Development of work specifications and bid packet by November 12, 2015 • Bidding process to be completed by December 11, 2015 Work to begin in December 2015 • All improvements completed by March 2016 PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Community Development Advisory Committee recommended approval of funding for improvements to the Fred Moore Day Nursery School facility. Funding for the project was included in the City's 2015 Action Plan for Housing and Connnunity Development. City Council approved the Action Plan on June 2, 2015. FISCAL INFORMATION Community Development Block Grant funds are budgeted for the project. Community Development staff costs to monitor construction and labor standards compliance is paid through CDBG and general fund dollars. EXHIBITS Exhibit 1 - Ordinance Respectfully submitted: Lancine Bentley Community Improvement Services Manager Prepared by: Barbara Ross Community Development Administrator City of Denton Page 2 of 2 Printed on 9/10/2015 S: \Legal \Our Documents \Ordinances \15 \Fred Moore Day Nursery.doc AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A FUNDING AGREEMENT BETWEEN THE CITY AND FRED MOORE DAY NURSERY SCHOOL TO PROVIDE COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS FOR IMPROVEMENTS TO THE FACILITY AT 821 CROSS TIMBER STREET, DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS NOT TO EXCEED $108,927; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City has received funds from the U.S. Department of Housing and Urban Development under the Housing and Community Development Act of 1974, as amended; and WHEREAS, the City Council has approved the 2015 Action Plan for Housing and Community Development which includes an authorized budget for expenditure of funds for improvements to the Fred Moore Day Nursery School facility; and WHEREAS, the Fred Moore Day Nursery School has developed a program to assist low and moderate- income families with affordable child care services; and WHEREAS, the City Council deems it in the public interest to enter into an agreement for improvements to the child care facility to provide much needed services for Denton families; NOW, THEREFORE, Vii► • ► 111"1111-111 . SECTION 1. The City Manager is hereby authorized to execute the attached Agreement between the City of Denton and the Fred Moore Day Nursery School to provide for improvements to the day care facility noted therein. SECTION 2. The City Council hereby authorizes the City Manager to expend funds in the manner and amount specified in the Agreement, not to exceed $108,927, and to take any other actions necessary to complete the City's obligations under the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. 17. S:\Legal\Qur Docoments\Ordinances\15\Fred Moore Day Nursery.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY Im APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: SALegahOur Documents\Cbntracts11 5\FMDNS Agreement.doc 2015-2016 AGREEMENT BETWEEN THE CITY OF DENTON AND THE FRED MOORE DAY NURSERY SCHOOL This Agreement is made and entered into by and between the City of Denton, a Texas munici- pal corporation, acting by and through its City Manager, pursuant to ordinance, hereinafter referred to as CITY, and the Fred Moore Day Nursery School, 821 Cross Timber Street, Denton, Texas, 76205, a Texas non-profit corporation, hereinafter referred to as SUBRECIPIENT. WHEREAS, CITY has received Community Development Block Grant funds from the U.S. Department of Housing and Urban Development under Tide I of the Housing and Community Devel- opment Act of 1974, as amended; and WHEREAS, CITY has adopted a budget for such funds and included therein an authorized budget for expenditure of funds for improvements to the existing facility for the SUBRECIPIENT; and WHEREAS, CITY has designated the Community Development Division as the division re- sponsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, CITY wishes to engage SUBRECIPIENT to carry out such project; 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. This Agreement shall commence on or as of September 1, 2015, and shall terminate on De- cember 31, 2025, unless sooner terminated in accordance with Section 26 "Termination ". 2. RESPONSIBILITIES SUBRECIPIENT hereby accepts the responsibility for the performance of all services and ac- tivities described in the Scope of Services attached hereto as Attachment A, and incorporated herein by reference, in a satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider SUBRECIPIENT's executive officer to be SUBRECIPIENT's representa- tive responsible for the management of all contractual matters pertaining hereto, unless written notifi- cation to the contrary is received from SUBRECIPIENT, and approved by CITY. The CITY's Community Development Administrator will be CITY's representative responsible for the administration of this Agreement. SUBRECIPIENT certifies that the activities carried out with Community Development Block Grant funds shall meet the program's National Objective of benefit to low and moderate-income per- sons. SUBRECIPIENT shall provide services to persons whose income is equal to or lower than 80% of the median income of the Dallas standard metropolitan statistical area. To accomplish this, the SUBRECIPIENT shall use the current applicable income limits published by the Department of Hous- Page 1 of 25 S:Teo Our Documents\Contracts\l 5\FMDNS Agreement.doc ing and Urban Development for the CDBG program. Income eligibility shall be determined by the sum of the gross income of all individuals residing in the household. Services must be provided direct- ly to or on behalf of specific identified eligible clients. Eligibility documentation must be included in each client's file and updated annually or services must be provided to a clientele that is within a "pre- sumed benefit" category. 3. CITY'S OBLIGATION A. Limit of Liability. CITY will reimburse SUBRECIPIENT for expenses incurred pursuant and in accordance with the project budget attached hereto as Attachment B and the Scope of Ser- vices herein attached as Attachment A and incorporated herein by reference. Notwithstanding any other provision of the Agreement, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of $108,927. B. Measure of Liability. In consideration of full and satisfactory services and activities hereun- der by SUBRECIPIENT and receipt of a requisition for payment with appropriate documenta- tion of expenditures, CITY shall make payments to SUBRECIPIENT based on the Budget at- tached hereto and incorporated herein for all purposes as Attachment B, subject to the limita- tions and provisions set forth in this Section and Section 7 of this Agreement. Payments may be contingent upon certification of the SUBRECIPIENT's financial management system in ac- cordance with the standards specified in OMB Circular A -110. (1) The parties expressly understand and agree that the CITY's obligations under this Sec- tion are contingent upon the actual receipt of adequate Community Development Block Grant (CDBG) funds to meet CITY's liabilities under this Agreement. If adequate funds are not available to make payments under this Agreement, CITY shall notify SUBRE- CIPIENT in writing within a reasonable time after such fact has been determined. CITY may, at its option, either reduce the amount of its liability, as specified in Subsection A of this Section or terminate the Agreement. If CDBG funds eligible for use for purposes of this Agreement are reduced, CITY shall not be liable for further payments due to SUBRECIPIENT under this Agreement. (2) It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of Denton. (3) CITY shall not be liable for any cost or portion thereof which: (a) has been paid, reimbursed or is subject to payment or reimbursement, from any other source; (b) was incurred prior to the beginning date, or after the ending date specified in Section 1; (c) is not in strict accordance with the terms of this Agreement, including all at- tachments attached hereto; (d) has not been billed to CITY within 90 calendar days following billing to SUB- RECIPIENT, or termination of the Agreement, whichever date is earlier; or (e) is not an allowable cost as defined by Section 10 of this Agreement or the pro- ject budget. Page 2 of 25 SALegahOur DocumentslContracts\MFMDNS Agreement.doc (4) CITY shall not be liable for any cost or portion thereof which is incurred with respect to any activity of SUBRECIPIENT requiring prior written authorization from CITY, or af- ter CITY has requested that SUBRECIPIENT furnish data concerning such action prior to proceeding further, unless and until CITY advises SUBRECIPIENT to proceed. (5) CITY shall not be obligated or liable under this Agreement to any party other thM1 SUBRECIPIENT for payment of any monies or provision of any goods or services. I (6) Funding not expended within two years of initial contract approval will revert to the City of Denton CDBG budget for use on alternative projects. 4. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. SUBRECIPIENT understands that funds provided to it pursuant to this Agreement are funds which have been made available to CITY by the Federal Government (U.S. Department of Housing and Urban Development) under the Housing and Community Development Act of 1974, as amended, in accordance with an approved Grant Application and specific assurances. Accordingly, SUBRECIPIENT assures and certifies that it will comply with the requirements of the Housing and Community Development Act of 1974 (P.L. 93-383) as amended and with regulations promulgated thereunder, and codified at 24 CFR 570. The foregoing is in no way meant to constitute a complete compilation of all duties imposed upon SUBRECIPIENT by law or administrative ruling, or to narrow the standards which SUBRECIPIENT must follow. SUBRECIPIENT further accrues and certifies that if the regulations and issuances promulgated pursuant to the Act are amended or revised, it shall comply with them, or notify CITY, as pro- vided in Section 23 of this Agreement. SUBRECIPIENT agrees to abide by the conditions of and comply with the requirements at 2 CFR Part 200 and the regulations at 24 CFR Parts 84 and 85 as applicable. B. SUBRECIPIENT shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. C. SUBRECIPIENT is required to comply with the applicable uniform administrative require- ments as described in 24 CFR 570.502, 570.505 and 24 CFR 570 subpart K with the exceptions noted below: (1) SUBRECIPIENT does not assume CITY'S environmental responsibilities described at CFR 570.604; and (2) SUBRECIPIENT does not assume the CITY's responsibility for initiating the review process under the provisions of 24 CFR Part 52. D. SUBRECIPIENT agrees to comply with the requirements of the Secretary of Labor in accord- ance with the Davis-Bacon Act as amended, the provisions of the Contract Work Hours Safety Standards Act, the Copeland "Anti-Kickback Act (40 U.S.C. 276a-276a-5; 40 USC 327 and 40 Page 3 of 25 S:\Legal\Our Documents\Contracts\l 5\FMDNS Agreement.doc USC 276c) and all other applicable Federal, state and local laws and regulations pertaining to labor standards and insofar as those acts apply to the performance of this contract. SUBRE- CIPIENT will work with CITY to obtain and maintain documentation of compliance. Upon written request by the CITY, SUBRECIPIENT will obtain the services of consultant to monitor the contractor's compliance with these requirements. E. SUBRECIPIENT agrees to comply with the provisions of Section 3, the regulations set forth in 24 CFR 135, and all applicable rules and orders issued hereunder prior to the execution of this agreement, and shall also be binding on any of the SUBRECIPIENT'S subcontractors. The SUBRECIPIENT certifies that no contractual or other disability exists which would prevent compliance with these requirements. SUBRECIPIENT further agrees to include a statement in all subcontracts requiring compliance with Section 3 and requiring subcontractors, to the great- est extent feasible, to provide opportunities for training and employment to low and moderate- income individuals that are residents of the project area. Upon written request of the CITY, SUBRECIPIENT will obtain the services of a consultant to monitor the general contractor's compliance with the Section 3 requirements. F. SUBRECIPIENT certifies that it is not currently listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with Executive Orders 12549 and 12689 and will not enter into agreements to expend Federal funds with contractors that are currently listed. 5. REPRESENTATIONS A. SUBRECIPIENT 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 Agreement. B. The person or persons signing and executing this Agreement on behalf of SUBRECIPIENT do hereby warrant and guarantee that he, she, or they have been fully authorized by SUBRECIPI- ENT to execute this Agreement on behalf of SUBRECIPIENT and to validly and legally bind SUBRECIPIENT 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 Agreement if there is a dispute as to the legal authority of either SUBRECIPIENT or the person signing the Agreement to enter into this Agreement. SUBRECIPIENT is liable to CITY for any money it has received from CITY for performance of the provisions of this Agreement if CITY has suspended or terminated this Agreement for the reasons enumerated in this Sec- tion. D. SUBRECIPIENT agrees that the funds and resources provided to SUBRECIPIENT under the terms of this Agreement 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, SUBRECIPIENT had this Agreement not been ex- ecuted. Page 4 of 25 S:\Lega1\0ur DocumentskContracts�l 5\FMDNS Agreement.doc 6. PERFORMANCE BY SUBRECIPIENT SUBRECIPIENT will provide, oversee, administer, and carry out all of the activities and ser- vices set out in the Work Statement, attached hereto and incorporated herein for all purposes as At- tachment A, utilizing the funds described in Attachment B, attached hereto and incorporated herein for all purposes and deemed by both parties to be necessary and sufficient payment for full and satisfacto- ry performance of the program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Agreement. No modifications or alterations may be made in the Scope of Services without the prior written approval of the City's Community Development Administrator. 7. PAYMENTS TO SUBRECIPIENT A. The CITY shall pay to the SUBRECIPIENT a maximum amount of money totaling $108,927 for activities carried out under this Agreement. CITY will pay these funds on a reimbursement basis to the SUBRECIPIENT within twenty clays after CITY has received supporting documen- tation of eligible expenditures. SUBRECIPIENT's failure to request reimbursement on a timely basis may jeopardize present or future funding. Funds are to be used for the sole purpose of completing facility improvements based on the budget herein attached as Attachment B. These improvements will support the SUBRECIPI- ENT'S efforts to carry out the activities described in the Scope of Services herein attached as Attachment A. B. Excess Payment. SUBRECIPIENT shall refund to CITY within ten working days of CITY's request, any sum of money which has been paid by CITY and which CITY at any time thereaf- ter determines: (1) has resulted in overpayment to SUBRECIPIENT; or (2) has not been spent strictly in accordance with the terms of this Agreement; or (3) is not supported by adequate documentation to fully justify the expenditure. C. Disallowed Costs. Upon termination of this Agreement, should any expense or change for which payment has been made be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, the Department of Housing and Urban Development, or any other Federal agency, SUBRECIPIENT will refund such amount to CITY within ten working days of a written notice to SUBRECIPIENT, which specifies the amount disallowed. Reftinds of disallowed costs may not be made from these or any funds received from or through CITY D. Reversion of Assets. SUBRECIPIENT, upon expiration of this Agreement shall transfer to the CITY any CDBG funds on hand at the time of expiration and any accounts receivable attribut- able to the use of CDBG funds. If CITY finds that SUBRECIPIENT is unwilling and/or unable to comply with any of the terms of this Contract, CITY may require a refund of any and all Page 5 of 25 SALega110ur Documents\Contracts1151FMDNS Agreement.doc money expended pursuant to this Contract by SUBRECIPIENT, as well as any remaining un- expended funds which shall be refunded to CITY within ten working days of a written notice to SUBRECIPIENT to revert these financial assets. The revision of these financial assets shall be in addition to any other remedy available to CITY either at law or in equity for breach of this Contract. E. Obligation of Funds. In the event that actual expenditure rates deviate from SUBRECIPIENT's provision of a corresponding level of performance, as specified in Attachment A, CITY hereby reserves the right to reappropriate or recapture any such underexpended funds. F. Contract Close Out. If requested, SUBRECIPIENT shall submit the Agreement close out pack- age to CITY, together with a final expenditure report, for the time period covered by the last invoice requesting reimbursement of funds under this Agreement, within 15 working days fol- lowing the close of the Agreement period. SUBRECIPIENT shall utilize the form agreed upon by CITY and SUBRECIPIENT. 8. WARRANTIES SUBRECIPIENT 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. B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of SUBRECIPIENT 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 SUBRECIPIENT. C. No litigation or legal proceedings are presently pending or threatened against SUBRECIPI- ENT. D. None of the provisions herein contravene or are in conflict with the authority under which SUBRECIPIENT is doing business or with the provisions of any existing indenture or agree- ment of SUBRECIPIENT. E. SUBRECIPIENT has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of SUBRECIPIENT are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements and/or other documents furnished by SUBRECIPIENT to CITY. G. 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. Page 6 of 25 S:\Legal\Our Documents\Contracts\l 5\FMDNS Agreement,doc 9. COVENANTS A. SUBRECIPIENT agrees to execute a lien that will be placed on the property assisted with Community Development Block Grant (CDBG) funds. The lien will name the CITY as the primary beneficiary for a period not to exceed ten years. B. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, SUBRECIPIENT shall not, without the prior written consent of the Com- munity Development Administrator or her authorized representative: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of SUBRECIPIENT 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 SUBRECIPIENT which are allocated to the performance of this Agreement 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 purchased with funds paid to SUBRECIPIENT by CITY, unless CITY authorizes such transfer. (6) Enter into any subcontracts with any agency or individual in the performance of this contract without the written consent of the Grantee prior to the execution of such an agreement. B. SUBRECIPIENT agrees, upon written request by CITY, to require its employees to attend training sessions sponsored by the Community Development Division. A. Costs shall be considered allowable only if incurred directly and specifically in the perfor- mance of and in compliance with this Agreement and in conformance with the standards and provisions of Attachments A and B. B. Approval of SUBRECIPIENT's budget, Attachment B, does not constitute prior written ap- proval, even though certain items may appear herein. CITY's prior written authorization is re- quired in order for the following to be considered allowable costs: Page 7 of 25 S:\Lega]\Our DocumentslContracts\l 5\FMDNS Agreement.doc (1) CITY shall not be obligated to any third parties, including any contractors of SUBRE- CIPIENT, and CITY funds shall not be used to pay for any contract service extending beyond the expiration of this Agreement. Written requests for prior approval are SUBRECIPIENT's responsibility and shall be made within sufficient time to permit a thorough review by CITY. SUBRECIPIENT must obtain written approval by CITY prior to the commencement of procedures to solicit or purchase ser- vices, equipment, or real or personal property. Any procurement or purchase which may be ap- proved under the terms of this Agreement must be conducted in its entirety in accordance with the provisions of this Agreement. 11. PROGRAM INCOME A. For purposes of this Agreement, program income means earnings of SUBRECIPIENT realized from activities resulting from this Agreement or from SUBRECIPIENT's management of fund- ing provided or received hereunder. Such earnings include, but are not limited to, income from interest, usage or rental or lease fees, income produced from contract-supported services of in- dividuals or employees or from the use or sale of equipment or facilities of SUBRECIPIENT provided as a result of this Agreement, and payments from clients or third parties for services rendered by SUBRECIPIENT under this Agreement. B. SUBRECIPIENT shall maintain records of the receipt and disposition of program income in the same manner as required for other contract funds, and reported to CITY in the format pre- scribed by CITY. CITY and SUBRECIPIENT agree that any fees collected for services per- formed by SUBRECIPIENT shall be used for payment of costs associated with service provi- sion. Revenue remaining after payment of all program expenses for service provision shall be considered Program Income and shall be subject to all the requirements of this Agreement and the regulations found at CFR, Section 570.504. C. SUBRECIPIENT shall include this Section in its entirety in all of its contracts which involve other income-producing services or activities. D. It is SUBRECIPIENT's responsibility to obtain from CITY a prior determination as to whether or not income arising directly or indirectly from this Agreement, or the performance thereof, constitutes program income. SUBRECIPIENT is responsible to CITY for the repayment of any and all amounts determined by CITY to be program income, unless otherwise approved in writ- ing by CITY. 12. MAINTENANCE OF RECORDS A. SUBRECIPIENT agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement, in compliance with the provisions of Attachment B, attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management including Section 2 CFR Part 200 and the regulations at 24 CFR Part 84 and 85 as applicable; Title 24 CFR Section 570.502 (b); Title 24 CFR Sections 570.504 and 570.506 as they pertain to costs incurred, au- Page 8 of 25 S:\Lega110ur Documents\Contracts1151FMDNS Agreement.doc dits, program income, administration and other activities and functions. SUBRECIPIENT's record system shall contain sufficient documentation to provide in detail full support and justi- fication for each expenditure. Nothing in this Section shall be construed to relieve SUBRECIP- IENT of fiscal accountability and liability under any other provision of this Agreement or any applicable law. SUBRECIPIENT shall include the substance of this provision in all subcon- tracts. B. SUBRECIPIENT agrees to retain all books, records, documents, reports, and written account- ing procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years after project completion. C. Nothing in the above subsections shall be construed to relieve SUBRECIPIENT of responsibil- ity for retaining accurate and current records, which clearly reflect the level and benefit of ser- vices provided under this Agreement. D. At any reasonable time and as often as CITY may deem necessary, the SUBRECIPIENT shall make available to CITY, HUD, or any of their authorized representatives, all of its records and shall permit CITY, HUD, or any of their authorized representatives to audit, examine, make ex- cerpts 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 representatives. I R., - OR" I R., F, 119, �' 1' W.' c 11 At such times and in such form as CITY statements, records, data and information as CITY by this Agreement. may require, SUBRECIPIENT shall furnish such may request and deem pertinent to matters covered SUBRECIPIENT shall submit beneficiary and financial reports to CITY no less than once per month. The beneficiary report shall detail client information, including race, income, female head of household and other statistics required by CITY. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section I of this Agreement. Beneficiary and financial reports shall be due to City within 15 working days after the end of each month. Unless the CITY has granted a written exemption, SUBRECIPIENT shall submit an audit con- ducted by independent examiners in accordance with Generally Accepted Accounting Principles. If the SUBRECIPIENT receives and/or expends more than $500,000 in federal funding, the audit must be conducted in accordance with OMB Circular A-133 as applicable within thirty days after receipt of such audit. 14. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of SUBRECIPIENT's performances under this Agree- ment. Page 9 of 25 SALega1\0ur Documents\Contracts1151FMDNS Agreement.doc B. SUBRECIPIENT agrees that CITY may carry out monitoring and evaluation activities to en- sure adherence by SUBRECIPIENT to the Scope of Services, and Program Goals and Objec- tives, which are attached hereto as Attachment A, as well as other provisions of this Agree- ment. C. SUBRECIPIENT agrees to cooperate fully with CITY in the development, implementation and maintenance of record-keeping systems and to provide data determined by CITY to be neces- sary for CITY to effectively fulfill its monitoring and evaluation responsibilities. D. SUBRECIPIENT 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 members to coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide SUBRECIPIENT with a written report of monitoring findings documenting findings and concerns that will require a written response to the City. An acceptable response must be received by the City within 60 days from the SUBRECIPIENT's receipt of the monitoring report or audit review letter. Future contract payments can be withheld for SUBRECIPIENT's failure to submit a response within 60 days. I F. SUBRECIPIENT shall submit copies of any fiscal, management, or audit reports by any of SUB- RECIPIENT's funding or regulatory bodies to CITY within five working days of receipt by SUBRECIPIENT. G. SUBRECIPIENT will monitor all subcontracted services on a regular basis to assure contract compliance. Results of monitoring efforts shall be summarized in written reports and support- ed with documented evidence of follow-up actions taken to correct areas of noncompliance. During the terms of this Agreement, SUBRECIPIENT shall cause to be delivered to CITY cop- ies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to CITY in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. SUBRECIPIENT understands and agrees that CITY representatives shall be afforded access to all of the Board of Directors' meetings. Minutes of all meetings of SUBRECIPIENT's governing body shall be available to CITY with- in thirty (30) days after Board approval. 16. INSURANCE A. SUBRECIPIENT shall observe sound business practices with respect to providing such bond- ing and insurance as would provide adequate coverage for services offered under this Agree- ment. B. The premises on and in which the activities described in Attachment A are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, com- Page 10 of 25 S:1Lega110ur Documents\Contracts1151FMDNS Agreement. doc monly referred to as "Owner/Tenant"' coverage with CITY named as an additional insured. Upon request of SUBRECIPIENT, CITY may, at its sole discretion, approve alternate insur- ance coverage arrangements. C. SUBRECIPIENT will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for pro- gram participants, if applicable. D. SUBRECIPIENT will maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by SUBRECIPIENT. All employees of SUBRECIPIENT 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 SUBRECIPIENT'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 SUBRECIPIENT. F. The policy or policies of insurance shall contain a clause which requires that CITY and SUB- RECIPIENT be notified in writing of any cancellation of change in the policy at least 30 days prior to such change or cancellation. 17. CIVIL RIGHTS / EQUAL OPPORTUNITY A. SUBRECIPIENT shall comply with all applicable equal employment opportunity and affirma- tive action laws or regulations. The SUBRECIPIENT shall not discriminate against any em- ployee or applicant for employment because of race, color, creed, religion, national origin, gen- der, age or disability. The SUBRECIPIENT will take affirmative action to insure that all em- ployment practices are free from such discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruit- ment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. B. The SUBRECIPIENT agrees to comply with Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063 and Executive Order 11246 as amended by Executive Orders 113 75 and 12086. C SUBRECIPIENT will furnish all information and reports requested by the CITY, and will per- mit access to its books, records, and accounts for purposes of investigation to ascertain compli- ance with local, state and Federal rules and regulations. D. In the event of SUBRECIPIENT's non-compliance with the non-discrimination requirements, CITY may cancel or terminate the Agreement in whole or in part, and SUBRECIPIENT may be barred from further contracts with CITY. Page 11 of 25 S:\LegalkOurDocuments\Contmts\15\FMDNSAgreement.doe - 18. PERSONNEL POLICIES Personnel policies shall be established by SUBRECIPIENT and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY's personnel policies, procedures, and practices, including poli- cies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of SUBRECIPIENT and by CITY. 19. CONFLICT OF INTEREST A. SUBRECIPIENT 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 perfor- mance of services required to be performed under this Agreement. SUBRECIPIENT further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. SUBRECIPIENT further covenants that no member of its governing body or its staff, contrac- tors 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/herself, or others, par- ticularly those with which he/she 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 participate in any decision relating to the Agreement which affects his or her personal interest or the interest in any corporation, partnership, or association in which he or she has a direct or indirect interest. 20. NEPOTISM SUBRECIPIENT 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 SUBRECIPIENT, or is a member of SUBRECIPI- ENT's governing board. The term "member of immediate family" includes: wife, husband, son, daugh- ter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half- brother and half-sister. 21. POLITICAL OR SECTARIAN ACTIVITY A. Neither the funds advanced pursuant to this Agreement, nor any personnel who may be em- ployed by the SUBRECIPIENT with funds advanced pursuant to this Agreement shall be in Page 12 of 25 S:\Lcgal\Our DocumentAContractsWWMDNS Agreement.doc any way or to any extent engaged in any conduct or political activity in contravention of Chap- ter 15 of Tide 5 of the United States Code. B. The SUBRECIPIENT is prohibited from using funds provided herein or personnel employed in the administration of the program for: political activities; sectarian or religious activities, lob- bying, political patronage or nepotism activities. C. The SUBRECIPIENT agrees that none of the funds or services provided directly or indirectly under this Agreement shall be used for any partisan political activity or to ftu-ther the election of defeat of any candidate for public office, or for publicity, lobbying and/or propaganda pur- poses designed to support or defeat pending legislation. Employees of the SUBRECIPIENT connected with any activity that is funded in whole or in part by funds provided to SUBRECIP- IENT under this Agreement may not under the term of this Agreement: 1. use their official position or influence to affect the outcome of an election or nomination. 2. solicit contributions for political purposes; or 3. take an active part in political management or in political campaigns. SUBRECIPIENT hereby agrees to sign a Certification Regarding Lobbying included herein as Attachment "F" and if necessary, the Disclosure of Lobbying Activities provided by the CITY. 22. PUBLICITY A. Where such action is appropriate, SUBRECIPIENT shall publicize the activities conducted by SUBRECIPIENT under this Agreement. In any news release, sign, brochure, or other advertis- ing medium, disseminating information prepared or distributed by or for SUBRECIPIENT, the advertising medium shall state that the U.S. Department of Housing and Urban Development's Community Development Block Grant Program funding through the City of Denton has made the project possible. B. All published material and written reports submitted under this project must be originally de- veloped material unless otherwise specifically provided in this Agreement. When material not originally developed is included in a report, the report shall identify the source in the body of the report or by footnote. This provision is applicable when the material is in a verbatim or ex- tensive paraphrase format. All published material submitted under this project shall include the following reference on the front cover or title page: This document is prepared in accordance with the City of Denton's Community Development Block Grant Program, with funding received from the United States Department of Housing and Urban Development. C. All reports, documents, studies, charts, schedules, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence and related material submitted by SUBRECIPIENT shall become the property of CITY upon receipt. Page 13 of 25 SALegal\Our Documents\Contracts1151FMDNS Agreement.doc 23. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly pro- vide that another method shall be used. B. SUBRECIPIENT may not make transfers between or among approved line items within budget categories set forth in Attachment B without prior written approval of CITY. SUBRECIPIENT shall request, in writing, the budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Agreement. In ad- dition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. SUBRECIPIENT will submit revised budget and program information, whenever the level of funding for SUBRECIPIENT or the program(s) described herein is altered according to the to- tal levels contained in any portion of Attachment B. D. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifi- cations are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. E. CITY may, from time to time during the term of the Agreement, request changes in Attachment A, which may include an increase or decreased in the amount of SUBRECIPIENT's compensa- tion. Such changes shall be incorporated in a written amendment hereto, as provided in Subsec- tion A of this Section. F. Any alterations, deletion, or additions to the Contract Budget Detail incorporated in Attachment B shall require the prior written approval of CITY. G. SUBRECIPIENT agrees to notify CITY of any proposed change in physical location for work performed under this Agreement at least 30 calendar days in advance of the change. H. SUBRECIPIENT shall notify CITY of any changes in personnel or governing board composi- tion. I. It is expressly understood that neither the performance of Attachment A for any program con- tracted hereunder nor the transfer of funds between or among said programs will be permitted. 24. SUSPENSION OF FUNDING Upon determination by CITY of SUBRECIPIENT'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 working days written no- Page 14 of 25 SALegaROur Documents\Contracts\l 5\FMDNS Agreement,doc tice to SUBRECIPIENT, withhold further payments to SUBRECIPIENT. Such notice may be given by mail to the Executive Officer and the Board of Directors of SUBRECIPIENT. The no- tice shall set forth the 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 correc- tive action, but in no event shall it exceed 30 calendar days. At the end of the suspension peri- od, if CITY determines the default or deficiency has been satisfied, SUBRECIPIENT may be restored to full compliance status and paid all eligible funds withheld or impounded during the suspension period. If however, CITY determines that SUBRECIPIENT has not come into com- pliance, the provisions of Section 26 may be effectuated. 25. TERMINATION A. CITY may terminate this Agreement for cause under any of the following reasons or for other reasons not specifically enumerated in this paragraph: (1) SUBRECIPIENT's failure to attain compliance during any prescribed period of suspension as provided in Section 24. (2) SUBRECIPIENT's failure to materially comply with any of the terms of this Agreement. (3) SUBRECIPIENT's violation of covenants, agreements or guarantees of this Agreement. (4) Termination or reduction of funding by the United States Department of Housing and Ur- ban Development. (5) Finding by CITY that SUBRECIPIENT: (a) is in such unsatisfactory financial condition as to endanger performance under this Agreement; (b) has allocated inventory to this Agreement substantially exceeding reasonable re- quirements; (c) is delinquent in payment of taxes, or of costs of performance of this Agreement in the ordinary course of business, (6) Appointment of a trustee, receiver or liquidator for all or substantial part of SUBRECIPI- ENT's property, or institution of bankruptcy, reorganization, rearrangement of or liquida- tion proceedings by or against SUBRECIPIENT. (7) SUBRECIPIENT's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section 4, and Section 2 of this Agreement. (8) The commission of an act of bankruptcy. Page 15 of 25 SALegahOur Docunients\Contracts\ I 5\FNMNS Agreement,doe (9) SUBRECIPIENT's violation of any law or regulation to which SUBRECIPIENT is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify SUBRECIPIENT in writing of the decision to terminate and the ef- fective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified in Attachment B. B. CITY may terminate this Agreement for convenience at any time. If CITY terminates this Agreement for convenience, SUBRECIPIENT will be paid an amount not to exceed the total of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount which bears the same ratio to the total compensation as the services actually performed bears to the total services of SUBRECIPIENT covered by the Agreement, less pay- ments previously made. C. SUBRECIPIENT may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which SUBRECIPIENT depends for perfor- mance hereunder. SUBRECIPIENT may opt, within the limitations of this Agreement, to seek an alternative funding source, with the approval of CITY, provided the termination by the out- side funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between SUBRECIPIENT and the funding source in question. SUBRECIPIENT may terminate this Agreement upon the dissolution of SUBRECIPIENT's organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, SUBRECIPIENT shall cancel, withdraw or otherwise ter- minate any outstanding orders or subcontracts, which relate to the performance of this Agree- ment. CITY shall not be liable to SUBRECIPIENT or SUBRECIPIENT's creditors for any ex- penses, encumbrances or obligations whatsoever incurred after the termination date listed on the notice to terminate referred to in this paragraph. E. Notwithstanding any exercise by CITY of its right of suspension or termination, SUBRECIPI- ENT shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by SUBRECIPIENT, and CITY may withhold any reimbursement to SUBRECIPIENT until such time as the exact amount of damages due to CITY from SUBRE- CIPIENT is agreed upon or otherwise determined. 26. 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 SUBRECIPIENT, SUBRECIPIENT shall give written notice thereof to CITY within two 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 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 ei- ther personally or by mail. Page 16 of 25 SA1Lega1\0ur Documents\Contracts115TNMNS Agreement.doc 27. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with SUBRECIPIENT as an independent SUBRECIPIENT and that as such, SUBRE- CIPIENT 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 result- ing in whole or in part from the performance or omission of any employee, agent or rep- resentative of SUBRECIPIENT. B. SUBRECIPIENT agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or SUBRECIPIENTs from any and all claims, suits, causes of action, demands, damages, losses, attorney 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 SUB - RECIPIENTs. 28. RELIGIOUS ACTIVITIES AND FAITH -BASED ORGANIZATIONS A. The SUBRECIPIENT will provide all services under this Agreement in a manner that is exclusively non - religious in nature and scope. There shall be no religious services, proselytizing, instruction or any other religious preference, influence or discrimination in connection with providing the services hereunder. B. As stated in 24 CFR Part 5.109, no organization will be prohibited from participating in activities funded through the CITY's Community Development Block Grant program including programs that make funds available through contracts, grants or cooperative agreements. SUBRECIPIENT shall not discriminate against any organization on the basis of the organization's religious character or affiliation. 29. MISCELLANEOUS A. SUBRECIPIENT shall not transfer, pledge or otherwise assign this Agreement 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 Agreement 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 SUBRECIPIENT hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by CITY of any breach of covenant or de- fault which may then or subsequently be committed by SUBRECIPIENT. Neither shall such Page 17 of 25 SALegalk0ur Documents\Contracts\l 5\FMDNS Agreement.doc 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 Agreement, together with referenced attachments, constitutes the entire agreement be- tween the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Agreement, whether written or oral, shall have no force or effect whatsoever; nor shall an agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or ef- fect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. 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 Agreement or its governing rules, codes, laws, ordinances or regulations, CITY as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. F. For purposes of this Agreement, all official communications and notices among the parties shall be deemed made if sent postage paid to the parties and address set forth below: TO CITY: TO SUBRECIPIENT: City Manager Executive Director City of Denton Fred Moore Day Nursery School 215 E. McKinney 821 Cross Timber St. Denton, Texas 76201 Denton Texas 76205 G. This Agreement shall be interpreted in accordance with the laws of the State of Texas and ven- ue of any litigation concerning this Agreement shall be in a court competent jurisdiction sitting in Denton County, Texas. IN WITNESS OF WHICH this Agreement has been executed on this the , 2015. CITY OF DENTON ON Page 18 of 25 day of S:\Legal\Our DocumentstContracts115TMDNS Agreement.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY [314 � M BY: WtNDY "GEE EXECUTIVE DIRECTOR Page 19 of 25 MAIR G • BAYS PRESIDENT, BOARD OF DIRECTORS SALegahOur Documents\Contracts\ 15WMDNS Agrccment. doc ATTACHMENT "A" SCOPE OF SERVICES Description of Facility Improvements The project will consist of improvements to the "activity room," including restroom plumbing, ceramic tile installation, sink, toilets and door installation, painting of gym walls and installation of gym floor. The project will also include installation of outdoor commercial playground equipment. Work Statement Fred Moore Dgy Nursery School In order to complete the agreed upon activity SUBRFCIPIENT shall provide the following services from the improved facility: Fred Moore Day Nursery School is a nonprofit childcare facility for low to moderate-income fami- lies. FMDNS will serve a minimum of 62 children ranging in age from six (6) weeks through five (5) years of age. Parents must be working, going to school full time or doing a combination of both to be eligible. in addition, parents will be required to volunteer at the childcare center. FMDNS will be open Monday through Friday from 6:30 am to 6:00 p.m. FMDNS will provide the services listed below and meet all stated requirements: • Provision of a safe, healthy environment that will meet the development needs of each cl-ffld. Activities will be designed for each age group to meet the individual and group needs. The curriculum will include education, emphasizing learning skills, creative arts, motor skills, physical development, speech development, personal hygiene and manners. • Provision of breakfast, lunch and an afternoon snack for each child. All meals will meet the USDA and Texas Department of Human Services Special Nutrition food requirements for children in childcare. • Remain open for service from 6:30 am to 6:00 pm. • Be licensed by the TX Department of Protective and Regulatory Services. • Meet or exceed the TX Department of Human Services minimum standards for Day Care Centers. • Must be a North Central Texas Childcare Services designated vendor. Page 20 S:1Lega110ur Documents\Contracts1151FMDNS Agreement.doe W11191im"88,19i Fred Moore Day Nursery School Improvements Restroom (RR) Plumbing $21,000.00 RR Ceramic Tile (wall and floor) $ 8,115.00 RR Sink/Toilet Doors & Partition $ 2,317.50 Painting/Scaling Gym Walls $ 4,500.00 G)gn Floor Installation $31,980.00 Activity Room Total $67,912.50 Commercial Playground Equipment $41,014.50 TOTAL PROJECT BUDGET $108,927.00* Prior to the start of construction, if requested, Fred Moore Day Nursery School, shall provide the Community Development Division with a project budget and documentation of any additional funding sources and commitments. *The "approximate cost" amounts listed above are estimates. Funding may reallocated as needed to complete improvements listed above, ATTACHMENT IICII 24 CFR § 570,505 The standards described in this section apply to real property within the recipient's control which was acquired or improved in whole or in part using CDBG ftmds in excess of $25,000. These standards shall apply from the date CDBG funds are first spent for the property until five years after closeout of an entitlement recipient's participation in the entitlement CDBG program or, with respect to other recipients, until five years after the closeout of the grant from which the assistance to the property was provided. (a) A recipient may not change the use or planned use of any such property (including the beneficiaries of such use) from that for which the acquisition or improvement was made unless the recipient provides affected citizens with reasonable notice of, and opportunity to comment on, any proposed change, and either: (1) The new use of such property qualifies as meeting one of the national objectives in Section 570.208 and is not a building for the general conduct of government; or Page 21 S:\Legal\Our Docurnents\Contracts\ I 5\FMDNS Agreement. doc (2) The requirements in paragraph (b) of this section are met. (b) If the recipient determines, after consultation with affected citizens, that it is appropriate to change the use of the property to a use which does not qualify under paragraph (a)(1) of this section, it may retain or dispose of the property for the changed use if the recipient's CDBG program is reimbursed in the amount of the current fair market value of the property, less any portion of the value attributable to expenditures of non- CDBG funds for acquisition of, and improvements to, the property. (c) If the change of use occurs after closeout, the provisions governing income from the disposition of the real property in Section 570.504(b) (4) or (5), as applicable, shall apply to the use of funds reimbursed. (d) Following the reimbursement of the CDBG program in accordance with paragraph (b) of this section, the property no longer will be subject to any CDBG requirements. WIN 24 CFR § 570.503 (a) Before disbursing any CDBG funds to a subrecipient, the recipient shall sign a written agreement with the subrecipient. The agreement shall remain in effect during any period that the subrecipient has control over CDBG funds, including program income. (b) At a minimum, the written agreement with the subrecipient shall include provisions concerning the following items: (1) Statement of Work. The agreement shall include a description of the work to be performed, a schedule for completing the work, and a budget. These items shall be in sufficient detail to provide a sound basis for the recipient effectively to monitor performance under the agreement. (2) Records and Reports. The recipient shall specify in the agreement the particular records the subrecipient must maintain and the particular reports the subrecipient must submit in order to assist the recipient in meeting its recordkeeping and reporting requirements. (3) Progr = Income, The agreement shall include the program income requirements set forth in Section 570.504(c). (4) Uniform Administrative Requirements. The agreement shall require the subrecipient to comply with applicable uniform administrative requirements, as described in Section 570.502. Page 22 SALegaI\Our Documents\Contraas\15TMDNS Agreement.doc (5) Other Pro -gram Requirements. The agreement shall require the subrecipient to carry out each activity in compliance with all Federal laws and regulations described in subpart K of these regulations, except that: (i) The subrecipient does not assume the recipient's environmental responsibilities described at Section 5'70.604; and (ii) The subrecipient does not assume the recipient's responsibility for initiating the review process under the provisions of 24 CFR Part 52. (6) Conditions for Religious Organizations., )Where applicable, the conditions prescribed by HUD for the use of CDBG funds by religious organizations shall be included in the agreement. (7) Suspension and Termination. The agreement shall specify that, in accordance with 24 CFR 85.43, suspension or termination may occur if the subrecipient materially fails to comply with any term of the award, and that the award may be terminated for convenience in accordance with 24 CFR 85.44. (8) Reversion of Assets. The agreement shall specify that upon its expiration the subrecipient shall transfer to the recipient any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. It shall also include provisions to the use of CDBG funds. It shall also include provisions designed to ensure that any real property under the subrecipient's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000 is either: (i) Used to meet one of the national objectives in Section 570.208 until five years after expiration of the agreement, or for such longer period of time as determined to be appropriate by the recipient; or GO Disposed of in a manner that results in the recipient's being reimbursed in the amount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. (Reimbursement is not required after the period of time specified in paragraph (b) (8) (1) of this section.) Page 23 S:\Lega]\Our Documents\Contracts\15\FMDNS Agrcement,doc ATTACHMENT "E" 24 CFR § 570.504 (a) Recording Program Income. The receipt and expenditure of program income as defined in Section 570.500(a) shall be recorded as part of the financial transactions of the grant program. (b) Disposition of Prouam Income Received by Recipients. (1) Program income received before grant closeout may be retained by the recipient if the income is treated as additional CDBG funds subject to all applicable requirements governing the use of CDBG funds. (2) If the recipient chooses to retain program income, that income shall affect withdrawals of grant funds from the U.S. Treasury as follows: (i) Program income in the form of repayments to, or interest earned on, a revolving fund as defined in Section 570.500(b) shall be substantially disbursed from the fund before additional cash withdrawals are made from the U.S. Treasury for the same activity. (This rule does not prevent a lump sum disbursement to finance the rehabilitation of privately owned properties as provided for in Section 570.513.) (ii) Substantially all other program income shall be disbursed for eligible activities before additional cash withdrawals are made from the U.S. Treasury. (3) Program income on hand at the time of closeout shall continue to be subject to the eligibility requirements in Subpart C and all other applicable provisions of this part until it is expended. (4) Unless otherwise provided in any grant closeout agreement, and subject to the requirements of paragraph (b) (5) of this section, income received after closeout shall not be governed by the provisions of this part, except that, if at the time of closeout the recipient has another ongoing CDBG grant received directly from HUD, funds received after closeout shall be treated as program income of the ongoing grant program. (5) If the recipient does not have another ongoing grant received directly from HUD at the time of closeout, income received after closeout from the disposition of real property or from loans outstanding at the time of closeout shall not be governed by the provisions of this part, except that such income shall be used for activities that meet one of the national objectives in Section 570.208 and the eligibility requirements described in Section 105 of the Act. Page 24 S:Tegal\Our Documents\Contracts\15TMDNS Agreernent.doc ATTACHMENT "F" Certification Regarding Lobbying The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid by or on behalf of the un- dersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an em- ployee of a Member of Congress in connection with the awarding of any Federal con- tract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a Federal contract, grant, loan or cooperative agreement, the undersigned shall complete and submit Standard Form-ILL, "Disclosure Form to Re- port Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this Certification be included in the award documents for all subawards at all tiers (including subcontractors, subgrants and contracts under grants, loans and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of the certification is a prerequisite for making or entering into this transaction imposed by Section 1352, title 31, US Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Wendy McGee, Fred Moore Day Nursery School -n Executive Director Signature U Title Date: Page 25 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -788, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Community Improvement Services CM/ ACM: John Cabrales Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving guidelines for operation of the City of Denton Home Improvement Program and eligibility criteria; authorizing expenditures in excess of $50,000 for projects meeting program guidelines and criteria; and providing for an effective date. BACKGROUND This ordinance approves guidelines and eligibility criteria for the 2015 Home Improvement Program (HIP). Passage of this ordinance authorizes project payments that exceed $50,000 when the project meets program eligibility criteria and guidelines. Eligibility Income Limits have been updated to comply with Department of Housing and Urban Development (HUD) adjusted limits that became effective March 25, 2015. City Council awarded Community Development Block Grant (CDBG) and Home Investment Partnership Program (HOME) grant funds to HIP for the 2015 -2016 program year as part of the City of Denton 2015 Action Plan for Housing and Connnunity Development on June 2, 2015. Additional funding sources may include program income and owner - provided personal funds. Bids are requested for all rehabilitation and reconstruction projects. Homeowners select their contractor from the bids that meet HIP guidelines. The following revisions are being proposed to the 2015 HIP guidelines. 1. An additional Financial Assistance Level has been added: Applicants age 62 and older who are at the income level below 50% of HUD median income will be eligible to receive a 100% deferred loan. 2. "Eligibility Income Limits" are updated at the time HUD publishes revised limits to comply with the Department of Housing and Urban Development's (HUD's) adjusted limits. Current limits were effective March 25, 2015. OPTIONS Option 1 - Adopt ordinance accepting Home Improvement Program (HIP) guidelines. Option 2 - Request revisions to the HIP guidelines. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -788, Version: 1 RECOMMENDATION Staff recommends approval of the Home Improvement Program guidelines. ESTIMATED SCHEDULE OF PROJECT The program guidelines will be in effect for owner - occupied rehabilitation and reconstruction projects completed from October 1, 2015 through September 30, 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Community Development Advisory Committee recommended funding for the HIP and City Council approved the recommendation on June 2, 2015, as part of the City of Denton's 2015 -2019 Consolidated Plan and the 2015 Action Plan for Housing and Community Development. FISCAL INFORMATION Housing program staff salaries related to program delivery are currently paid with CDBG and HOME funds. No general fund dollars are expended for program management costs. EXHIBITS Exhibit 1 - Ordinance Respectfully submitted: Lancine Bentley Community Improvement Services Manager Prepared by: Barbara Ross Community Development Administrator City of Denton Page 2 of 2 Printed on 9/10/2015 SALcgaWur DocumentsNOrdinances1 1 5\2015 HIP Ordinanw.doc AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING GUIDEL-411ES FO OPERATION OF THE CITY OF DENTON HOME IMPROVEMENT PROGRAM AN.1 ELIGIBILITY CRITERIA; AUTHORIZING EXPENDITURES IN EXCESS OF $50,000 FO PROJECTS MEETING PROGRAM GUIDELINES AND CRITERIA; AND PROVIDING FO AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton recognizes the need to assist low and moderate income families in securing safe, sanitary and decent housing; and WHEREAS, the City of Denton participates in a Home Improvement Program administered by the City of Denton Community Development Division and funded through a federal grant from the Department of Housing and Urban Development; and WHEREAS, the City Council deems it to be in the public interest to approve the Program Eligibility Criteria for the 2015 Program year; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council approves the 2015 Home Improvement Program Guidelines and Home Improvement Program Eligibility Criteria which are attached hereto and made a part of this ordinance for all purposes as Exhibit "A" and authorizes the City of Denton Community Development Division to administer this program. SECTION 2. The City Council authorizes the expenditure of funds in excess of $50,000 by the Community Development Division for projects meeting Program Guidelines and Criteria, subject to compliance with competitive bidding laws, where applicable. SECTION 3. 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 row 01 Exhibit "A" 2015 Home Improvement Program Guidelines **,\ I // Available in Spanish / Disponible en Espanol It Effective Date: 10/01/2015 it mum mum Applicants) Is Subject To Any Guideline Changes Prior to Contract Execution Page 2 TABLE OF CONTENTS INTRODUCTION..................................................................................................................... ..............................4 HomeImprovement Program .................................................................................................... ..............................5 Description of General Program Procedures ............................................................................. ..............................5 I. PURPOSE ...................................................................................................................... ..............................5 II. DESIGNATED AUTHORITY ...................................................................................... ..............................5 III. ELIGIBILITY REQUIREMENTS: ............................................................................................................. 5 IV. APPLICATION PROCESSING .................................................................................... ..............................9 V. SELECTION OF RECIPIENTS FOR ASSISTANCE ................................................. .............................10 VI. WAIVERS AND APPEALS PROVISION .................................................................. .............................11 VII. FINANCIAL ASSISTANCE ........................................................................................ .............................11 VIII. CONTRACT REQUIREMENTS ................................................................................. .............................12 IX. PROJECT FEASIBILITY CRITERIA ......................................................................... .............................14 X. PROJECT COST LIMITS ............................................................................................ .............................15 XI. ALLOWABLE EXPENSES ......................................................................................... .............................16 XII. PROGRAM ACTIVITY OPTIONS ............................................................................. .............................16 A. Owner - Occupied Rehabilitation .............................................................. .............................17 B. Optional Reconstruction .......................................................................... .............................17 XIIL CONTRACTOR SELECTION AND PROJECT MONITORING .............................. .............................17 XIV. PAYMENTS TO CONTRACTOR ............................................................................... .............................20 XV. CONTRACTOR DEBARMENT .................................................................................. .............................20 APPENDICESLIST ................................................................................................................. .............................22 APPENDIX 1 Qualifying Income Limits for Federally Assisted Programs ................ ............................... 23 & 24 APPENDIX 2 Targeted Neighborhoods Map ........................................................................... .............................25 APPENDIX 3 HOME Certification and Participation Agreement .......................................... .............................26 APPENDIX 4 Temporary Rehousing Questionnaire and Agreement ...................................... .............................30 APPENDIX 5 Space & Amenity Allowances For Reconstruction Activities .......................... .............................32 APPENDIX 6 LBP Hazard Control Relocation Policy and Procedure .................................... .............................34 Page 3 INTRODUCTION The City of Denton Home Improvement Program's objective is to assist low and moderate - income families in securing safe, sanitary and decent housing. This objective is accomplished through owner - occupied rehabilitation and optional reconstruction activities. Rehabilitation of an owner - occupied dwelling corrects code violations and makes needed repairs. If a dwelling is not feasible for rehabilitation, the applicant may be eligible for a replacement single- family dwelling. Optional reconstruction activity provides funds to demolish dilapidated dwellings and construct new modest, energy efficient and safe single - family dwellings on owners' lots. The Home Improvement Program is administered by the City of Denton Community Development and is funded by federal grant dollars from the United States Department of Housing and Urban Development (HUD), participating owner funds, program income and other grant and private dollars, when available. The following pages contain a detailed description of the Home Improvement Program including program and project guidelines, application instructions and project bidding process. The purpose of the guidelines is to explain to potential applicants and the citizens of Denton, the Home Improvement Program and the levels of assistance available. For further information or clarification of the guidelines, please contact the: Community Development Division 601 E. Hickory Street, Suite B Denton, Texas 76205 -4303 (940) 349 -7726 (Office) (940) 349 -7753 (Fax) Located at City Hall East — 2nd Floor Enter Building's West door on Railroad Street ADA/EOE /ADEA Texas State Relay (telephone device for the deaf): TDD (800) 735 -2989 EQUAL HOUSING OPPORTUNITY Page 4 Home Improvement Program Description of General Program Procedures I. PURPOSE A. The City of Denton Home Improvement Program provides technical and financial assistance for eligible low and moderate - income households to complete rehabilitation or reconstruction of their principal residence. B. Assistance shall be subject to the availability of program funds. Administrative procedures will be modified to meet any change in rules and HUD regulations that may occur over time. IL DESIGNATED AUTHORITY A. Administrative authority for implementation of the program will rest with the City of Denton Community Development Division. Community Development staff approves contractual and budget changes, as needed for project completion. B. The Community Development Administrator will have the responsibility for final determination of the amount of assistance available to individual applicants, in accordance with the program guidelines, policies and procedures. C. The Community Development Administrator will be responsible for approval of applicant eligibility for the program and final approval of applicants to be assisted. III. ELIGIBILITY REQUIREMENTS: Eligibility requirements must be met for both the applicant's household and the property. Eligibility for assistance is completed in two phases as described in sections A. and B. below. A. Applicant(s) / Household Eligibility Requirements: Must be a United States citizen or a legal resident alien. 2. Must own, currently occupy and have occupied the dwelling for at least the past two consecutive years. (The period of time an applicant has lived in a property under a lease for purchase or contract for deed form of purchase may be taken into consideration in calculating the two consecutive years.) 3. Must hold a Fee Simple Title to the property. City staff will verify ownership through a general title search. a. If applicant is purchasing their home by a "contract for deed" (or a like contract), where applicant does not gain title to the property deed until all contractual obligations have been met, applicant is not eligible for assistance. The seller must provide the purchaser with a filed warranty deed on the property to satisfy this eligibility requirement. b. If applicant(s) inherited the property, the legal documents establishing applicant(s) has fee simple title to the property must be on file in the Denton County Clerk's Office. Applicant must provide proof of financial responsibility for the property (i.e. tax payments, and /or utility payments, fee simple title, executed, filed Page 5 affidavit of heirship, etc.), and, proof of residency, both, for not less than the most recent two consecutive years. 4. Must meet program's income limits. a. Gross annual total household income is at or below the following, adjusted for family size. Current maximum income limit by household size is (income limits effective 3/25/2015): Rehabilitation /Reconstruction 80% of the AMI Household Size Maximum Income Limit 1 $39,050 2 $44,600 3 $50,200 4 $55,750 5 $60,250 6 $64,700 7 $69,150 8 $73,600 b. Must not have assets (total combined for all household members) in excess of $100,000. NOTE 1: The appraised value of the applicant's property is excluded in total assets calculation. NOTE 2: Household income is calculated based on HUD's Technical Guide for Determining Income and Allowances for the HOME Program as described in the City's Home Improvement Program Policies and Procedures Manual. 5. Must have acceptable credit under the City of Denton Community Development underwriting policy. Applicant(s) must exhibit the financial ability to pay creditors, including the following basic housing expenses: a. Home Mortgage Payment, including the loan with the City of Denton for Home Improvement assistance; b. Loan and revolving credit payment(s); C. Property Taxes (City, County, DISD) for all owned properties; d. Homeowner's Insurance Policy premiums; e. Utilities: electrical /water /sewage /solid waste and gas. 6. Must not have any active levy or judgment against applicant(s) or the property. 7. Applicants denied assistance due to poor credit history may be reconsidered for the program upon verifiable completion of six (6) consecutive months of successful debt management with GreenPath Debt Solutions, 723 South 13 5E, Suite 210, Denton, TX 76205, ww.greenpath.com /home.htm or other debt management companies. Note: Debt management will be recertified prior to signing contracts. Page 6 8. Must demonstrate that current and projected income exceeds projected housing expenses and would allow the applicant to maintain the dwelling. 9. Homeowner may be required to provide owner contribution toward project cost (see Section VILA.). 10. Pre - existing mortgage note balance cannot exceed 80 percent of the property's after appraised value for rehabilitation and 70 percent of the property's after appraised value for reconstruction. 11. See "household" guideline at section III.B.10.a. below. NOTE: The City of Denton reserves the right to request an independent market analysis. B. Property Eligibility Requirements 1. Must be zoned to allow for single- family construction and be situated in a Targeted Neighborhood within the city limits of Denton (Refer to Targeted Neighborhoods Map - Appendix 2). 2. Must exhibit building code deficiencies that make the dwelling unsafe or unsanitary. 3. Structure must be more than 20 years old. 4. May not have existing property code violations (such as high weeds, trash, debris, junk vehicles, etc). Any liens placed on a property for correcting any past or present code violations must be paid in full by the time application processing occurs. Any items cited as a code violation on the property must be corrected or removed before assistance is provided. 5. Must be serviced by or be accessible to City- approved water supply, sanitary sewer and electrical system. 6. Must meet all of the City of Denton's Land Development Codes. 7. Must comply with and meet all environmental regulations; i.e., historical, floodplain, noise, lead, etc. 8. May not exceed Community Development Replacement Housing Space Allowances Policy for reconstruction. Projects that would exceed the set standards due to property deed restrictions or neighborhood minimum requirements are not eligible for assistance. 9. Must be covered by an approved homeowner's insurance policy. NOTE: If an applicant's property is not currently insurable because of its present condition or the property is going to be reconstructed, the applicant must sign a HOMEOWNER AFFIDAVIT OF UNDERSTANDING AGREEMENT FOR HOMEOWNER'S INSURANCE to satisfy this eligibility requirement. Proof of homeowners insurance must be provided at completion of a rehab or reconstruction. 10. Households and /or properties previously assisted through this program mayor may not be eligible for additional assistance as follows: a. A household that has received assistance to rehabilitate or reconstruct a home that they subsequently sold is not eligible for assistance on another housing unit. Page 7 b. A property that received rehabilitation assistance after August 1996 when the total dollar amount spent was above $40,000 is not eligible for additional assistance from this program. c. A property that received rehabilitation assistance before August 1996 may be eligible for additional assistance when all liens have been paid and released. d. A property that has received reconstruction assistance is not eligible for additional assistance from this program. IV. APPLICATION PROCESSING A. To be placed on the waiting list, applicants must meet the following criteria: Household's total gross annual income does not exceed current program income limits (See Appendix 1). 2. Property is occupied by the owner and is their principal residence. 3. Property is located in a Targeted Neighborhood (see Appendix 2). 4. Property meets all requirements in Section III.B. 5. Applicant must complete a Waiting List Application Form and attach a copy of their property deed or proof of ownership. (Waiting List Application Forms are available at the Community Development Division, 601 E. Hickory Street, Suite B Denton, Texas, 76205, 940 - 349 - 7726.) B. Upon submission of a waiting list application to Community Development, applicants are placed on the waiting list in the order in which their application was received. C. When applicant reaches the top of the waiting list, they will be notified in writing to complete the application process and must provide all items requested on the checklist. In addition to checklist items, further documentation may be required to process application. NOTE: Contact deadline dates will be specified in the notice to apply letter from Community Development. Applicant must schedule an appointment to apply and must submit required application information prior to the stated deadline. These deadlines are strictly enforced. D. Application information regarding household income and composition must be complete, accurate and up -to -date. All information will be verified by Community Development staff. Any intentionally falsified information will cause the application to be rejected and the applicant will not be allowed to reapply. Failure to disclose information that may affect eligibility requirements shall also constitute fraud. Applicants shall be required to make full restitution to the City in the event Community Development services are provided to applicants who provided inaccurate or incomplete information in order to meet eligibility requirements. E. Applicant must provide a detailed personal budget that includes the household's expenditures and net incomes to determine if household has enough discretionary income available to pay back a loan to the City. Page 8 F. Applicant must attend a homeownership workshop, with emphasis being placed on maintenance, budgeting, cost effective decorating, and responsibilities of home ownership. G. Community Development staff will notify eligible applicant(s) of the financial assistance category he /she is eligible for under the program guidelines. Applicant will be notified that final eligibility for assistance is determined upon completion of the feasibility study of the property. Ineligible applicants will be notified of the reason their application for assistance is being rejected. H. Any applicant who feels that s /he has been unjustly denied assistance under the Home Improvement Program should follow the appeal procedure outlined in Section VI. V. SELECTION OF RECIPIENTS FOR ASSISTANCE A. Assistance will be provided to households based on the following: Households assisted. Assistance will be provided on a first come, first served basis. The date upon which the Eligibility Certification Part I was approved will be used to determine the order of assistance. 2. Funding availability. The HIP Program project targets stated in the Action Plan must be met. If funds needed to complete a project are not available, the applicant will be assisted based on the date of application submission when funds become available. 3. Funding available for reconstructions. Annual (CD program year) HIP funding will assist a maximum of two reconstructions. All other funding available will be used for rehabilitation of existing units. However, if no housing units on the waiting list are viable rehabilitation projects, additional reconstructions may be necessary to meet Federal expenditure requirements. B. Community Development Staff will provide counseling and assistance as needed to facilitate the applicant's rehousing/housing, including the following: Information on the program and rehousing /housing options available. 2. Assistance in soliciting bids for replacement housing. 3. Assistance in contractual compliance between applicant and contractor. 4. Assistance in inspection of construction of replacement dwelling, if applicable. C. When a home requires reconstruction and the applicant has a Denton Central Appraisal District "Over 65" exemption, staff will place this project in a position to begin that ensures it can be demolished and reconstructed within the same calendar year in order to preserve the exemption. In some instances, that may require a delay in assisting by three or four months. VI. WAIVERS AND APPEALS PROVISION A. Request for Waiver: The City of Denton Home Improvement Program must follow specific guidelines in order to assure proper administration and management. In the event that an applicant feels that his /her circumstances require special consideration, s /he may request, in writing, a waiver from the usual requirements. All requests should specify the requirement(s) to be considered for waiver and state the applicant's reason(s) or special circumstances why s /he believes a waiver should be approved. The Community Page 9 Development Administrator will review requests on a case -by -case basis. Applicant will be notified in writing of the final decision. VII. FINANCIAL ASSISTANCE A. Owner Contribution is a percentage of the total project cost that the applicant must provide at contract signing. These funds are held in an escrow account and will be expended before City funds are used when making contractor payments. The owner contribution increases on a sliding scale as household income increases. See Appendix I for percent of owner contribution by income ranges and family size. B. City of Denton Funds: The City of Denton will fund the remaining project costs using Federal HUD CDBG and HOME dollars, program income and private funds, when available. C. Term of the Note is determined by the activity to be completed and /or total project cost as follows: Activity / Project Cost Term Rehabilitation/Below $10,000 60 months (5 years) Rehabilitation/Between $10,000 - $25,000 120 months (10 years) Rehabilitation/Above $25,000 - $45,000 180 months (15 years) Reconstruction or Rehab ilitation/Above $45,000 240 months (20 years) D. Financial Assistance Levels: There are two types of financial assistance: 1. Two -part loan that includes a payable and deferred loan. 2. Deferrred loan. Forgiveness loan will be provided to seniors, age 62 and above, who are at the income level below 50% of HUD median income. See Appendix I for income ranges by household size, payable to deferred loan ratios and description of Payable and Deferred loans. E. Applying to the Home Improvement Program is voluntary. Funds for temporary relocation are not provided. VIII. CONTRACT REQUIREMENTS A. The City of Denton will be in the first lien position. When a first lien position is not possible, the City may accept second lien position, subject to the review and approval of the Community Development Administrator. Liens are released once all the requirements and conditions of the deed and promissory note have been met. B. DEFAULT ON CONTRACT: If the applicant defaults on their contract, the lien will be called due in full, and referred to the City of Denton's Legal Department to begin acceleration of the note as allowed by law. The City will make every effort to work with the applicant to avoid foreclosure and will examine each situation on a case -by -case basis. Examples of loan default include, but are not limited to: 1.) Delinquent loan payments; 2.) Failure of grantee to reside in the assisted dwelling unit as the principal residence of applicant; 3.) Failure to maintain adequate homeowner insurance coverage; 4.) Failure to pay property taxes when due;5.) Failure to pay utility bills when due. C. SALE OF PROPERTY: In the event the grantee sells the property prior to maturity of the note, the sum of the unpaid balance of the loan and the unforgiven balance of the deferred Page 10 loan amount will become due immediately. Under no circumstance will assistance be provided to grantee on any future property purchased. D. DISCONTINUATION OF RESIDENCY: In the event the owner(s) no longer resides in the unit due to death or a permanent medical condition and the heirs /owner decide to sell the property, the City of Denton will accept as settlement of the note the lesser of: Sixty -five (65) percent of the property's market value at the time of sale (the City reserves the right to conduct an independent appraisal), or, 2. Payment of the entire loan balance (both payable and forgivable) owed at the time of grantee's death or date grantee was no longer able to reside in his /her home due to medical reasons. If the heir(s) decides a family member will permanently reside in the property, the City of Denton will negotiate a modified and /or continuation of the note depending on beneficiary income and ownership circumstances. If the heirs decide to set up the property as a rental unit, they will pay the balance due as calculated in "D" above and may request a monthly payment arrangement. The heirs will be required to 1.) gain simple fee title ownership to the property; 2.) complete the application process providing household income and backup documentation, when an heir will become owner; and, 3.) sign a Modification of Note and Lien. NOTE: Invoicing on the balance due will resume in three (3) months from "event" date unless other arrangements are requested by heir(s) and approved by the Community Development Administrator. E. TEMPORARY DISCONTINUATION OF RESIDENCY: In the event the owner(s) temporarily discontinues residence due to a medical condition, but has a all intention to return to the primary residence; owner must continue to make timely loan payments and comply with the following: Keeping the property in good repair and condition; 2. Paying all taxes and assessments on the property when due; 3. Preserving the lien's priority as it is established in this deed of trust; 4. Maintaining in a form acceptable to Beneficiary, an insurance policy; a. If a house remains vacant for 60 days or longer, an insurance company could cancel the policy, or deny claims. It is the homeowner's responsibility, if the home is vacant for more than 60 days, to ensure that the house has required insurance coverage. Homeowner is responsible for contacting their insurance company to ensure coverage. Coverage must comply with the following: - covers all improvements for their full insurable value - contains a replacement cost coverage clause for the reconstructed structure - provides fire and extended coverage, including windstorm coverage - protects Beneficiary with a standard mortgage clause - provides flood insurance at any time property is in a flood hazard area. Page 11 b. After homeowner returns home, it will be the homeowner's responsibility to ensure that the policy is a homeowner's insurance policy and complies with all contract requirements. F. LOSS OF HOUSEHOLD INCOME: If, after the project begins, a household experiences a permanent, substantial loss of household income, an applicant may request a re- evaluation of their total annual gross household income. This evaluation may result in a decrease in the payable portion of the note. The loss of income must be from an income - earning household member(s) whose income was used in determining the original loan assistance category. Please note: Loss of employment (voluntarily or involuntarily) is not considered a "permanent loss ". For purpose of this program "permanent loss" is defined as: 1. death 2. retirement (must be 62 years of age or older) 3. permanent disability 4. Other substantial permanent loss of income, when approved by Community Development Administrator. All household members must complete all income information and forms as required in section IV, Application Processing_- Application processing will be completed to determine if an adjustment and /or extension to the payable portion of the note is eligible. A determination will be made after evaluating the household size and income using the program guideline income limits and financial assistance categories that are being used at the time the request for reduced loan payment is made. When a loan adjustment and /or extension is granted, the applicant must sign a Modification and Extension of Real Estate Note and Lien reflecting the adjustment and /or extension of the note. IX. PROJECT FEASIBILITY CRITERIA A. A decision as to the type and amount of assistance an applicant is allowed is based on the feasibility of a property to be rehabilitated. An assessment will be completed using the following factors: Determine if the rehabilitation cost will be affected by: the zoning of a property, a property being located in a designated 100 -year floodplain or floodway, a need to abate possible presence of lead -based paint, possible historical restoration requirements, or if a rehab will reduce noise levels if property is in a high noise area. NOTE: The Floodplain Management regulations may limit the total cost of all non - code repairs for any dwelling located in a designated 100 -year floodplain to 50 percent of a property's pre - rehabilitation appraised value as set by the Denton Central Appraisal District (dwelling [not land] value only). 2. Determine if the framework and foundation of a dwelling are stable, or can be made stable through rehabilitation. (May allow for structural engineer evaluation of structure when staff cannot determine.) 3. Lead -based paint hazard reduction techniques will be used when lead -based paint exceeds HUD's acceptable limits for lead content in existing paint. The limits for lead content exceed HUD's limits when lead content exceeds 1 mg per cml (one milligram per centimeter squared), or 5000 ppm (parts per million). The reduction techniques Page 12 used by this program are described and found in the U. S. Department of Housing & Urban Development's publication, Guidelines for the Evaluation and Control of Lead - Based Paint Hazards in Housing, issued June 1995. NOTE: The homeowner may be required to make arrangements for household's relocation if it is required in the Homeowner Protection Plan for Lead Based Paint Hazard Control work. See Lead -Based Paint Hazard Control Policy & Procedure for more information. 4. Is a room addition(s) needed to relieve serious overcrowding? NOTE: Room additions and improvements to relieve serious overcrowding may be eligible and require the approval of the Community Development Administrator. B. A structural evaluation and project cost determination is completed. Projects that will exceed the Project Cost Limits (Section X) are not eligible for rehabilitation assistance. Applicant may be referred for optional reconstruction assistance. X. PROJECT COST LIMITS A. A rehabilitation project must meet all of the following tests to be considered feasible to rehabilitate. Projects not feasible for the rehabilitation activity maybe eligible for reconstruction and must meet the cost criteria in items 2 and 3 of this section. Rehabilitation: Using the post project square feet (properties less than 1000 SF use 1000 SF to calculate), rehabilitation is limited to $55 per square foot of total living space up to a maximum bid limit of $70,000, plus 10% for potential change orders. Exceptions: An additional $10 per square foot may be available to comply with lead reduction. An additional $10 per square foot may be available to comply with historical requirements. When rehabilitation includes either lead -based paint and /or historical work, a project bid is limited to a maximum of $80,000, plus 10% for potential change orders. 2. Reconstruction: Bids submitted contractors must be reasonable and must not exceed more than 5 percent of Community Development's cost estimate. 3. The after project appraised property value will not exceed 95% of the current HOME Maximum Purchase Price or After -rehab Value Limits for Denton as established by HUD (See Appendix I). B. PROGRAM MINIMUM LIMITS FOR Home Improvement projects: A dwelling needing less than $5000 of repairs is not eligible for Home Improvement Program assistance. XI. ALLOWABLE EXPENSES Federal CDBG and HOME grant funds will be used to pay for eligible project costs to complete substantial rehabilitation of existing owner - occupied properties and reconstruction of substandard owner - occupied properties. Some allowable fees are: o Cost of room addition(s), to relieve serious overcrowding when approved by the Community Development Administrator. o Demolition of substandard structures as needed to complete projects. Page 13 o Costs necessary to build modest, energy efficient, safe and sanitary replacement of principal residences o Other eligible expenses the Community Development Division determines necessary to facilitate the completion of activities allowed by this program (Example: title search, filing fees, platting, engineering reports, permit and tap fees, etc.) o Eligible administrative costs. o Other fees and costs as allowed by the CDBG and HOME regulations. NOTE: Funds for temporary relocation during project construction are not provided. XII. PROGRAM ACTIVITY OPTIONS The Home Improvement Program provides three options. The process required for all activities will be: Process o CD staff will complete a project feasibility study. This inspection will include a detailed evaluation of all deficiencies needing to be addressed to bring the dwelling up to minimum program standards. o Activity option determined based on feasibility criteria (Section IX.). o Project details completed and approved by applicant. o CD staff completes a cost estimate of the work to be completed. o CD Administrator certifies the project as "eligible" or "not eligible." o If eligible for reconstruction, applicant must sign the Temporary Rehousing Questionnaire and Agreement (Appendix 4) or for rehabilitation of homes built before 1978, the Lead Based Paint Hazard Control Relocation Policy and Procedure (Appendix 6). o Bid packet is prepared, bid out as described in Contractor Selection and Monitoring (Section XIII), owner chooses contractor from eligible bids, contracts are signed and project begins. o The City's Building Inspections and CD staff inspects project's progress routinely to ensure compliance with City codes and project specifications. Community Development staff completes final inspection. o For reconstruction activity, owner must have utilities connected and provide proof of homeowner's insurance before property can be occupied. o Project is closed upon contractor receiving contingency payment; owner receives loan payment schedule; invoicing begins. In the event a procedure is not addressed in these guidelines the Program Manager will determine the best course of action. A. Owner - Occupied Rehabilitation This activity will assist eligible applicants to rehabilitate single- family principal residences by making needed repairs with the first priority being to correct code violations. This Page 14 activity is eligible when a completed project will yield a structurally sound, safe, sanitary and decent single - family dwelling that meets City's building codes (see Section IX). B. Optional Reconstruction The reconstruction activity is offered when existing dwellings are not feasible for rehabilitation. Optional reconstruction provides funds to demolish existing dilapidated dwellings and reconstruct modest, energy efficient, safe and sanitary replacement single - family dwellings. XIIL CONTRACTOR SELECTION AND PROJECT MONITORING All applicants are responsible for finding a contractor who will develop a proposal to complete approved home improvement activity. Eligible applicants may request assistance from Community Development staff to help homeowner with the bidding process. The homeowner may elect to seek a bid proposal from a qualified contractor of their choice. Bids by contractors submitted by the applicant must be reasonable (within 10 percent, high or low, of the Community Development cost estimate). Contractors selected by the applicants must meet eligibility and insurance requirements. Contact any reputable and experienced contractor and request a bid for the required work. IF YOU HAVE ANY TROUBLE FINDING A CONTRACTOR, contact any of the following places for assistance: • Your local Better Business Bureau • Any friends or neighbors who have had remodeling done to their properties. • Chamber of Commerce • Community Development Contractor's List When a contractor comes to meet with you, you should: Show him/her the mandatory work items that have been identified by the Community Development per the work write up, construction plans and project standards. Advise him/her that the bid proposal must be returned to you for submission to the rehabilitation program by a due date. DO NOT SIGN ANY AGREEMENT WITH THE CONTRACTOR. Owner must submit the contractor's bid proposal to the Community Development at 601 E. Hickory Street, Suite B Denton, TX 76205. The Community Development staff will review the proposal to verify that: The contractor is licensed and has all City- required insurance coverage. 2. All required improvements have been included in the bid. 3. The proposed work is in conformance with the program's General Specifications. 4. All proposed costs are reasonable (as verified by CD staff prepared cost estimate). Page 15 5. The contractor chosen by owner has not been disqualified by any local, State or Federal government agency. Any contractor whose name appears on the most current HUD or City of Denton Debarred Contractor's List will not be eligible to participate in this program. References will be checked and claims of substandard workmanship will be cause to declare a contractor ineligible. The contractor must also submit all required proof of insurance forms and bonds (if applicable). Failure to submit these will result in rejection of the bid proposal. The bid proposals that are submitted by the applicant will be reviewed by Community Development to determine if the total bid price is reasonable per cost estimate and under the maximum allowable amount. THE CITY OF DENTON AND THE APPLICANT RESERVE THE RIGHT TO REJECT ANY AND ALL BIDS. If the Community Development Administrator approves the bid proposal submitted by the applicant, the Community Development staff shall proceed. A construction contract must be signed. Before the contractor can start work, the applicant must issue a notice to proceed. After the owner's three day right of rescission has passed, contractor must apply for and obtain approved appropriate building permits as required by the City of Denton Building Inspections Division before any work may begin. When a project involves reconstruction of a substandard home, contractor must have an approved building permit in hand prior to applying for a permit to demolish the substandard structure. The contractor's work will be monitored by the applicant, Community Development staff and the City of Denton building code inspector. If the applicant considers any work done by the contractor to be unsatisfactory or incomplete, the applicant should advise the contractor of the discrepancy and ask that it be corrected. In the event a dispute exists between the applicant and the contractor with respect to the work, the City shall take appropriate action in accordance with the provisions of the construction contract to assure that the applicant is satisfied before making any payment to the contractor. In the event a dispute cannot be resolved, the Department Director shall consider all pertinent facts and shall decide an appropriate course of action to resolve the dispute. Acceptance of Work Final Inspection: In order for the contractor to close out a project, a final inspection shall be made by the City of Denton building code inspector, the Community Development staff, and the applicant. If the final inspection results in no additional work or no specified corrections, the applicant shall sign final payment request stating that all work has been completed to their (applicant's) satisfaction. The building code inspector shall sign a final inspection form to confirm the same. At this time, the contractor is advised to submit to the Community Development copies of all warranties and releases of liens from subcontractors and suppliers prior to contingency payment. 2. Warranty of Work As stated in the contract, the contractor shall guarantee the work performed for a period of at least one -year from the date of final acceptance. The contractor will return in thirty (30) days and ask the applicant if any additional repairs are necessary. Any deficiencies or necessary repairs to specified work will be completed at this time. Page 16 XIV. PAYMENTS TO CONTRACTOR A. The contractor shall receive approved final payment, minus a 10 percent contingency, for completed contract within 15 working days after final inspection approval. The contingency is calculated on the final contract amount by adding the total project bid amount plus or minus change orders, minus, if applicable, the cost for demolition. Contingency is withheld for thirty (30) days from the date of final acceptance by Community Development staff. After thirty days, if no additional or warranty work remains, the contractor must request written approval from owner and CD staff to release withheld contingency funds. Contractor must endorse the Mechanic's Lien Note over to the City of Denton and sign a release of note and lien of the Mechanic's Lien Contract before contingency payment can be released. B. A contractor may request interim - project payments throughout the course of the project. Interim payments will be made available to the contractor upon applicant and CD staff approval of any contract work that has been completed. Contractor will submit a CONTRACTOR REQUEST FOR PAYMENT AND PERIODIC STATEMENT form to the applicant when requesting payments. C. An "All Bills Paid" affidavit and release of lien from all subcontractors and suppliers must be submitted to the Community Development before final payment can be released to contractor. Any electrical, plumbing, mechanical, window and /or other required permits, Energy Star certification, when required, and termite inspection report must also be submitted to the Community Development prior to releasing contingency payment to the contractor. XV. CONTRACTOR DEBARMENT A. A contractor will be declared ineligible to participate in projects funded by the City of Denton Home Improvement Program for one or more of the following causes: 1. Failure to complete a project within the prescribed contract period. 2. Failure to complete warranty repairs within a reasonable time period. 3. Failure to use licensed plumbing and electrical subcontractors. 4. Failure to obtain City - required insurance, i.e., general contractor's liability, automobile liability and builder's risk (if applicable). 5. Failure to complete work in accordance with program specifications and /or accepted standards of workmanship. 6. Failure to pay all subcontractors working on the project appropriately and /or by not submitting affidavits of payment signed by all subcontractors. 7. Failure to obtain proper permits for work in progress. 8. Failure to treat applicants with respect and courtesy. 9. Other offenses not described here when the Community Development Director believes a contractor's action(s) does not serve the best interest of the program, the City or the applicant. B. Contractors will be notified of their proposed debarment and will be afforded the opportunity to comment or appeal the action. All appeals must be made in writing to the CD Administrator, Community Development Division, 601 E Hickory St., Ste. B, Denton, TX 76205 -4303 by the 15th day from the date of the notification letter. Page 17 APPENDICES Appendix 1 Qualifying Income Limits and Ranges for the City of Denton's Federally Assisted Programs Appendix 2 Target Neighborhoods Map Appendix 3 Homeowner HOME Certification and Agreement to Participate in the Home Improvement Program Owner Occupied Assistance Appendix 4 Temporary Rehousing Questionnaire and Agreement Appendix 5 Space & Amenity Allowances For Reconstruction Activities Appendix 6 Lead Based Paint Hazard Control Relocation Policy and Procedure Page 18 ■ ■ FY 2015/2016 City of Denton Community Development Division Qualifying Income Limits for Federally Assisted Programs Rehabilitation and Optional Reconstruction Eligible Income Ranges (The income limits are set by HUD - adjusted on HUD's effective dates) 2 -Part Loan *60% Payable / *40% Payable / *25% Payable / *15% Payable / Ratio* 40% Deferred 60% Deferred 75% Deferred 85% Deferred Owner 1 % of Total .75% of Total .5% of Total .25% of Total Contribution Pro ect Cost Project Cost Project Cost Project Cost Income Range Moderate Low Very-Low Extremely -Low Family Size 80% AMI - 65% AMI 65% AMI - 50% AMI 50% AMI - 30% AMI <_30% AMI 1 $39,450 - 32,046 $32,045 - 24,651 $24,650 - 14,801 $14,800 or below 2 $45,050 - 36,661 $36,660 - 28,201 $28,200 - 16,901 $16,900 or below 3 $50,700 - 41,211 $41,210 - 31,701 $31,700 - 19,001 $19,000 or below 4 $56,300 - 45,761 $45,760 - 35,201 $35,200 - 21,101 $21,100 or below 5 $60,850 - 49,466 $49,465 - 38,051 $38,050 - 22,801 $22,800 or below 6 $65,350 - 53,106 $53,105 - 40,851 $40,850 - 24,501 $24,500 or below 7 $69,850 - 56,746 $56,745 - 43,651 $43,650 - 26,201 $26,200 or below 8 $74,350 - 60,451 $60,450 - 46,501 $46,500 - 27,901 $27,900 or below Financial Assistance Levels: There are two types of financial assistance: • Two -part loan that includes a payable and deferred loan. • Deferrred loan. Forgiveness loan will be provided to seniors, age 62 and above, who are at the income level below 50% of HUD median income. Part L• Payable Loan is based on a percentage of the total City -paid project cost (see Section VILD.). The payable portion of the loan is amortized over the term of the note (60 to 240 months - see Section VII.C.), and carries a 2 percent interest rate. There is no penalty for paying the payable loan off early. Part IL• Deferred Loan is based on a percentage of the total City -paid project cost (see Section VILD.). This portion of the loan carries a zero percent interest rate. For every month applicant complies with deed and note requirements, a fraction of the deferred loan is forgiven (on a 5 -year note, 1/60, on a 10 -year note 1/120, on a 15 -year note 1/180, and on a 20 -year note 1/240). The deferred loan terms are from between 60 to 240 months (5 to 20 years) based on project cost and /or type of assistance activity (see Section VILC.). At the end of the contract term the deferred loan is forgiven, provided applicant has satisfied all the conditions listed in the Deed of Trust and Promissory Note. The deferred loan is secured by a lien on the property. Appendix 1 Page 19 *Persons ate 62 or older who are at the income level below 50% of HUD median income will be eligible to receive a 100% deferred loan. Persons age 62 or olden whose income level is above 50 %, are eligible to receive a reduction of half of the payable loan percentage (rounded down). The reduced amount will be added to the deferred portion of the loan. Reportable Income: Gross income for all household members aged 18 and above must be included to determine household's eligibility to receive assistance; however, some household members' incomes may be excluded when determining the payback category that the eligible household will be approved for. They are: applicant's children, grandchildren or legal guardians of the applicant who are ages 18 up to 26 and /or children aged 22 up to 26 who are full or part -time students. Incomes for household members aged 26 and older will be included in determining the payback category for the household. Income Limit Source: U.S. Department of Housing and Urban Development. Effective: 3/25/2015 95 Percent of the 2015 After Rehab Value Limit for Existing Homes: ($172,000) = $163,400 Denton — Effective: 3/2015 New Homes: $200,000 = $190,000 Appendix 1 Page 20 APPENDIX 2 City of Denton, Texas Targeted Neighborhoods Map N LOOP 288 s rr YI +l n cr 1 Y !Y f HERCULES y - . v o r _)�' 1 ✓r t,,; ' �I {Ir�r Y �5 i u%' �,�„drwi1'"�` Mn,M1� C 1 I� I l� �'11NOSOR h RI M:!..•eX ill LP�Y' I �4 I j J Y u, A��F r &)& 11 tl r ry Ir' Vg F, 1 A 4 °. � III ., na,,, � % � � � �~� N 1l ✓ 0 1 i . / fl f�� �i u � 1� �1 k, k '� �,� .y � r� . ,,, I h" ,, U (ll 4I w ✓JF I �+ ��� �Ir I J ut j 5 Yr ry . kXNIVER.PNiY v �f u s a �� ama ri 4 aq �w _I��rRY�I av✓ �i �. .' q� r ..� �... 1 r A x PI p l m i f ;✓ r r J x_ � I � � �4 �a A ��� � gg �� ✓l r,� 1 O » r J �r � "`era . vvm ! ;u mm F I rrI Fri l ��uo �a � , , . ,., wti� ;,� r�ry �,v �r � � ��✓ 1 � w� i ( JI MQM4I E s �f Oaa� �. of L �� ,r a D y,M 14 � SNCAMORE �H EY � x^ E'�Afi� tI e, 1Popt14� J �j tl r r 11 MORSE'6; Ipp ✓ �` 6 r � Y p Y SMIM r ....,., a . _.... TNIII 4r f rep h '��j P N,� V °✓1 r I u r nmm+. al p ' ._ . c N Q � ( .ate i ✓ ,awn � ➢,� w„i a. p 1 i Appendix 2 Page 21 APPENDIX 3 t &i�mi�irirli Mrs DENT ON Home Improvement Program HOME Beneficiary Written Agreement Homeowner Name(s) & Property Address: As stated in 24 CFR 92.504, each recipient of HOME funds must enter into a written agreement with every entity that benefits from the use of the awarded funds. This HOME Investment Partnerships Program Home Improvement Agreement ( "Agreement ") is entered into by the City of Denton, Texas, ( "City ") and Homeowner Name (hereinafter called "Homeowner" whether one or more persons). This Agreement applies only to the Homeowner and dwelling unit ( "Property "), as identified above. This Agreement describes the HOME Program rules that pertain to the assistance provided through the City of Denton's Home Improvement Program. By initialing the items listed below, Homeowner confirms that each item has been read and Homeowner understands and agrees to comply with each item, as applicable: 1. USE OF HOME PROGRAM FUNDING The City will provide HOME Program funding in the estimated amount of $.00 to assist with the cost to rehabilitate /reconstruct the Homeowner's Property as listed above. ❑ Rehabilitation of an owner - occupied home; ❑ Reconstruction of an owner - occupied home on an existing site At the time Homeowner is approved for HOME Program assistance, Homeowner has an ownership interest in and occupies the Property to be rehabilitated /reconstructed as his /her principal residence. Homeowner agrees to continue to occupy the Property as his /her principal residence for 5 -20 years from the date the rehabilitation /reconstruction work is completed. This is called the lien period. At the time Homeowner is approved for the HOME Program assistance, the Homeowner qualifies as a low - income household with a gross household income that does not exceed 80% of the area median income as established by the U.S. Department of Housing and Urban Development for the Dallas TX HUD Metro FMR Area, adjusted for household size, and as updated annually. $.00 Area Median Income (adjusted for family size _) The HOME Program assistance provided by the City will be secured by a promissory note and recorded subordinate deed of trust (no lower than second position). Monthly payments will be required on this payable portion of the assistance at 2% interest. The deferred loan portion will be provided at 0% interest and will be forgiven, as listed on promissory note, for each full month the Homeowner uses the Property as his /her principal residence during the lien period. For more details, please review Home Improvement Program Guidelines. Actual payment information will be included in the Promissory Note. Housing rehabilitation /reconstruction work will provide general rehabilitation /reconstruction necessary to bring the structure into compliance with the City of Denton's applicable written building codes and property standards, housing rehabilitation /reconstruction program standards, lead -based paint regulations, and HOME Program property standards. Rehabilitation /reconstruction work to be completed will only be as specified in the approved written work specification for the Property and any approved change orders. Said City of Denton applicable written building codes and property standards, housing rehabilitation /reconstruction program standards, lead -based paint regulations, HOME Program property standards, and written work specifications and change orders are incorporated herein by reference. Appendix 3 Page 22 The after -rehab value of Property must not exceed the HOME Maximum Purchase Price or After -rehab Value Limits Limits for the Dallas -Fort Worth - Arlington, TX metropolitan area. New Homes HOME Purchase Price Limit = 1 $200,000 Existing Homes HOME Purchase Price Limit 1 $172,000 REHAB: Estimated Milestones 5 -10 days 7 -12 days 12 -24 days 24 -30 days 30 -60 days 50 -75 days 75 -90 days Permits Work begun - Electrical & HVAC, Drywall, Painting, Miscellaneous issued Foundation Plumbing Windows cabinetry, Floor finish out. sheathing and repairs and rough - & doors. finish coverings, roofing HVAC & roof begun Structural Plumbing Attic I windows I sheathing repairs begun and insulation Electrical RECONSTRUCT: Estimated Milestones 30-40 40 -50 days 50 -65 days 65 -80 days 80 -100 days 100 days da s Insulation Drywall, texture, Painting, HVAC, electrical Finals insp. And Permits Demolition Foundation Framing, Plumbing, Seconds issued and clearance including sheathing and electrical, Inspection inspection plumbing roofing HVAC & including rough I I windows I sheathing 100 -115 days 115 days 115 -125 days 125 -150 days 150 -175 days 175 -180 days Wall Insulation Drywall, texture, Painting, HVAC, electrical Finals insp. And insulation, inspection & and trim out incl cabinetry floors & plumbing E/S insp. masonry Energy Star 1St doors finish out inspection 2. PROPERTY STANDARDS All rehabilitation /reconstruction work write up /bid specifications /plans, completed by Community Development staff, will be completed in compliance with the City's Home Improvement Program written property standards and all applicable written local building and property codes and standards. REHABILITATION — Repairs are made to the existing home in order to eliminate its construction deficiencies, in accordance with the Home Improvement Program Minimum Construction Standards as established by the City o1 Denton Home Improvement Program. The homeowner may be required to make arrangements for relocation while the rehabilitation takes place. RECONSTRUCTION — Due to excessive construction deficiencies which cannot be repaired or rehabilitated sufficiently to meet required minimum construction standards, the existing structure is demolished and replaced with a newly constructed home built on the same site. Reconstructed homes must comply with 2009 International Residential Code (IRC) standards. The homeowner will be required to make arrangements for relocation while the reconstruction takes place. Home Improvement assistance will only be provided to cover the cost of rehabilitation /reconstruction necessary to bring the property in compliance with locally adopted, written building and property standards, Rehabilitation /reconstruction Program standards and, applicable Federal and State building and property standards. Appendix 3 Page 23 3. WRITTEN AGREEMENT PROVISIONS Homeowner will enter into a written agreement with the Homeowner - selected, qualified Contractor for the completion of rehabilitation /reconstruction work. The written agreement shall include the scope of work, the cost of the work to be completed, and the time frame during which the scope of work must be completed, all of which have been reviewed and approved by Homeowner, City, and Contractor at the preconstruction conference. 4. DEFAULT ON CONTRACT OR SALE OF PROPERTY If the homeowner defaults on their contract, the lien will be called due in full, and referred to the City of Denton's Legal Department to begin acceleration of the note as allowed by law. The City will make every effort to work with the homeowner to avoid foreclosure and will examine each situation on a case -by -case basis. Examples of loan default include, but are not limited to: 1. Delinquent loan payments; 2. Failure of grantee to reside in the assisted dwelling unit as the principal residence of applicant; 3. Failure to maintain adequate homeowner insurance coverage; 4. Failure to pay property taxes when due; and 5. Failure to pay utility bills when due. SALE OF PROPERTY: In the event the homeowner sells the property prior to maturity of the note, the sum of the unpaid balance of the loan and the unforgiven balance of the deferred loan amount will become due immediately. Under no circumstance will assistance be provided to grantee on any future property purchased. For more details and information, please refer to Home Improvement Program Guidelines. By signing below, Homeowner acknowledges receipt of this document and understanding of its contents. Name, Homeowner Date Alma Espino, Housing Programs Manager, City of Denton Date Appendix 3 Page 24 TEMPORARY REHOUSING QUESTIONNAIRE AND AGREEMENT Your participation for optional reconstruction assistance is voluntary. Reconstruction funds are limited therefore; the Program does not cover costs necessary for household to relocate during reconstruction of the property. Please complete the following questionnaire. This information will help our staff in determining if you will be eligible for optional reconstruction assistance. 1. I understand that costs will begin to incur that may include but are not limited to filing, platting, re- platting, title search, property surveys and other costs deemed necessary. I understand I will be responsible for these costs, even though project may or may not be completed. Yes No 2. 1 understand that it is my responsibility to relocate my household, before the reconstruction and after the reconstruction is completed, and that I am responsible for all costs involved to do so. I also understand that I must vacate permanently the currently occupied substandard dwelling within 10 days notice by the City. Yes No 3. 1 understand that as a result of reconstruction, my appraised property value, set by the Denton Central Appraisal, may increase significantly from the amount at which it is currently valued. Yes No 4. 1 understand that an increase in my property value may cause my property taxes to increase by a significant amount. I am financially prepared to meet any increase. Yes No 5. 1 understand that I am obligated to carry homeowner's insurance for the duration of the lien (20 years) that the City of Denton will have on my property. I understand that I must request that my insurance company list the City of Denton as a "Certificate Holder" on my policy. Yes No 6. 1 understand that my homeowner insurance premium will most likely increase as a result of the reconstruction. I am aware that my insurance policy must cover the after - reconstruction appraised value of my property. I am financially prepared to meet this increase. Yes No 7. 1 understand that I must take possession and occupy the replacement dwelling when the reconstruction is completed and the City determines it to be ready for occupancy. I understand that I may be required to resign contracts. Yes No 8. 1 understand that The City of Denton is limited in the amount of funds it can spend to reconstruct a property. I have been briefed on these limits and understand that my eligibility for optional reconstruction assistance will be granted only if it is determined that the total of all costs involved to reconstruct my property will be at or below the allowable program limit. Yes No This APPLICATION was completed by (Name) on (Date). By signing below, I am requesting that the City of Denton Community Development Division accept this as my application to be considered for optional reconstruction assistance. Applicant's Signature Appendix 4 Page 25 Date APPENDIX 5 SPACE & AMENITY ALLOWANCES FOR RECONSTRUCTION ACTIVITIES The City of Denton may provide replacement single - family modest, safe, energy- efficient, decent dwellings. An EnergyStar® qualified home. Space and room limits for replacement housing are determined by household need. Replacement housing will provide up to the following: Provided Space 1 Kitchen 1 Dining Area or Kitchenette 1 Laundry Alcove 1 Food Pantry Closet and /or Cabinet 1 Coat Closet 1 Linen Closet 1 Living Area 2 -3 Bedrooms * ** W /Closets ** 1 or 2 Bathrooms* 1 Attached (Non- Conditioned) Storage Area Maximum Sguare F 2 Bedrooms 1 bath 2 Bedrooms 2 baths 3 Bedrooms 1 bath 3 Bedrooms 2 baths 4 Bedrooms 2 baths Amenities eet Allowed (Within 5 % + / -) -1000 SF - 1080SF -1150 SF -1200 SF -1250 SF ( ** *must be approved) 1 Brick Mailbox 1 HVAC Unit (16 -Seer AC) 1 Front Entry Door 150 gallon Water Heater 2 -Car Driveway Space Programmable Thermostat 1 Energy Star Refrigerator NI^ 1 Ceiling fan per bedroom and 1 in Living Room 1 Front & 1 Rear Exterior Weatherproof Electrical Outlets 1 Rear or Side Entry Door 1 Front, 1side& 1 Rear Hose Bibb 1 Attic Access Stairs Standard lighting including exterior safety lights front and back 14 burner Gas or Electric Range /single Oven (appliances if needed) Flooring: Owner chooses combination and placement of Carpet/Pad, Sheet Vinyl or Tile Vinyl Flooring - maximum of one carpet and one vinyl choice per house. Grass: Sod will be installed at a minimum of 5' wide around entire foundation /perimeter, T wide around sidewalks and driveway. Season - appropriate seed will be spread on remainder of un -sod yard. *Bathroom: A full bathroom may be made accessible to accommodate physically handicapped household member(s). Household may also select a 1/2 or 3/4 bath in place of a second full bath, if desired. * *Clothes closets will ideally, when possible, provide a minimum of 4'X 2' of space per bedroom. ** *Determining Maximum Number of Bedrooms from household makeup: A household may select up to a 3 bedroom 2 bathroom house based on need. A fourth bedroom may be requested in writing when a household believes there is a valid need for the additional space. The Community Development Administrator approves requests on a case -by -case basis. Under no circumstances will this program provide space exceeding that described above. Appendix 5 Page 26 Appendix 6 DENTON Lead -Based Paint Hazard Control Policy & Procedure Please read the information in this policy /procedure in its entirety. If you agree with the information established for this project as outlined below, please sign and date the last page of this document and return it to the Community Development Division. Should you have any questions or concerns regarding this policy, please feel free to call (940) 349 -7726 and schedule an appointment with staff General Policies The following are general policies: • Only properties that were built before 1978, occupied by families that are approved to participate in the Home Improvement Program and have children under 72 months of age are eligible for LHCG funds (when available). Lead hazards will be completed using Federal CDBG and HOME funds when LHCG funds are not available. • Pre - hazard blood lead level testing for every child less than 72 months of age within 6 months prior to the start of rehabilitation/lead remediation work is required. Blood lead testing must be completed by a qualified medical agency. The child's Blood Lead test results do not need to be provided, but documentation from the qualified medical agency must be provided documenting the child(ren) has been tested. • Funds for temporary relocation during project lead hazard control work are not provided. Since the owner occupied rehabilitation programs are entirely voluntary, the Uniform Relocation Act does not apply. (Relocation requirements during lead hazard control work for elderly households may be waived by owners when no children live in or regularly visit the property). • All back up documentation in individual project files and available for review on request. The files need to be maintained for the term of the loan. Environmental Requirements: Must comply with and meet all lead based paint regulations. Lead -based paint hazard reduction techniques will be used when lead -based paint exceeds HUD's acceptable limits for lead content in existing paint. The limits for lead content exceed HUD's limits when lead content exceeds I mg per cm' (one milligram per centimeter squared), or 5000 ppm (parts per million). The reduction techniques used by this program are described and found in the U. S. Department of Housing & Urban Development's publication, Guidelines for the Evaluation and Control of Lead - Based Paint Hazards in Housing, issued June 1999 Inspection, Risk Assessment Testing, and Clearance Procedures: All lead hazard evaluations will be conducted by risk assessors. Risk assessments may be conducted either by staff or contracted through qualifying firms. Clearance tests for projects may be conducted by clearance sampling technicians. All lead hazard control methods will fall into the category of interim controls although some activity may in fact permanently remove lead hazards. Rehabilitation Specialists will use professional judgment and expertise in Appendix 6 Page 27 determining appropriate methods to address deficient conditions based on recommendations from the risk assessment. Homeowner Protection: The Home Improvement Program requires that an Homeowner Protection Plan, includes all household members, must be in effect before lead hazard control work can commence. Safety is given first priority in determining these plans. Homeowner protection is mandatory and designed to protect homeowner(s), members of the household, pets and personal belongings during lead hazard control work. The attached Homeowner Protection Plan is specific to your lead hazard control project and was developed based on the scope of work to be completed. This Plan assures safe housing is available to the homeowner. These plans are the final decision and responsibility of the Lead Abatement Project Designer. By signing and dating the Home Improvement Relocation Approval page, you will be agreeing to the Homeowner Protection Plan that is a part of this document: Project Start Date: Once the homeowner(s) has selected a contractor a Project Start Date must be established. This date is determined through a cooperative effort and agreed upon by the contractor, homeowner(s) and Community Development staff The three factors that must be considered to set a Project Start Date are: First: The date the contractor can actually begin the project. Contractor is to include time needed to meet the Three -clay Right of Rescission requirement as well as any time needed to prepare for the project such as, ordering materials needed that must be available on the date the LHC work actually begins (windows, doors, etc.). Second: The date the homeowner(s) has prepared for all requirements of the Temporary Relocation Plans (as written above). This date must take into account all arrangements needed to be made by owner (such as hotel reservations, packing, storage, if required, and any other arrangements that must be made prior to the work beginning). Third: The date City of Denton staff can have contracts ready for signing (including a date all parties required to sign contracts will be available to sign) All parties must give priority to reaching an acceptable Project Start Date. Once a Project Start Date has been established, all parties will be notified of: Project Completion Date: The amount of time needed to complete a project is decided on a project -by- project basis but usually fluctuates from between two days and two weeks. The contractor is required to provide a set project completion date (or, provide the number of consecutive working days the project will take to complete). The Lead Abatement Project Designer must approve this timeline. The Project Completion Date will become part of the project contracts. Clearance Testing Requirement: Before homeowner(s) can return to the property, the property must pass: 1.) visual inspection; 2.) dust wipe; and 3.) soil clearance tests. If clearance is not achieved on first testing results, the relocation process must be prolonged to allow contractor time to achieve clearance levels (put the levels here). Reaching clearance is the responsibility of the contractor; therefore, any additional time required to meet clearance is the contractor's responsibility. If the Project Completion Date must be extended because of a failed clearance test, liquidated damages will be enforced for every day homeowner(s) cannot return to the property. The contractor will also be responsible for lab fees, if retesting is required, and the cost of these fees will be deducted from the contract amount. Homeowner(s) will not be permitted to enter the worksite once the project has started for the duration of the hazard reduction activities until such a time that clearance testing has passed all requirements. Moving and Storage: Appendix 6 Page 28 Funds for temporary relocation during project rehabilitation/reconstruction are not provided. In most cases, household goods will not have to be moved. In the event the Lead Abatement Project Designer determines that some or all furniture and household goods must be moved out of the property, the Home Improvement Program will notify homeowner(s). If furniture needs to be moved: The homeowner(s) will be notified by Home Improvement Program of the areas where work will be conducted. These areas will need to be readily available to the contractor to begin working. If furniture needs to be moved, closets emptied, shelves cleared etc., it is the responsibility of the homeowner(s) to relocate their possessions to assist the contractors timely and efficient work schedule. The homeowner(s) is responsible for packing and storing valuable possessions. Neither the contractor nor the City of Denton is responsible for missing or damaged property that has not been properly packed and stored by the homeowner(s). It is advisable that homeowner(s) make a checklist of all valuables stored. Steps for relocating a family: 1. A draft of relocation plan will be made by the Home Improvement Program. Contractor will submit plan of work schedule stressing all exterior work to be completed. 2. Home Improvement Program informs homeowner(s) of abatement commencement, preferably 10 days before. 3. Home Improvement Program starts paperwork and will advise and consult regarding extended period of relocation. 4. Home Improvement Program will inform or provide the family with: a. Information of time span required for the relocation. b. Everything they should take that they will need for the maximum number of days they will be relocated. c. All pets should be relocated or boarded. Homeowner(s) will be made responsible for insuring that all household members are relocated during lead hazard control work and the house be made available to begin project. Homeowner(s) will provide keys to the contractor. 8. Home Improvement Program will inform Homeowner(s) of final clearance. If house does not pass clearance, then Home Improvement Program will inform property homeowner(s). Appendix 6 Page 29 Home Improvement Program Lead -Based Paint Hazard Control Homeowner Protection Plan Includes all household members / pets / household goods and belongings Homeowner(s) Name: Project Address: Homeowner Protection: Pet Protection (If Applicable): Personal Belongings /Household Goods Protection: Other Instructions required for this project: Signed: Lead Abatement Project Designer Name Printed: 1.) Contract Signing Date: 2.) Project Start Date: 3.) Project Completion Date: Date Plan Developed NOTE One: If for any reason any of the dates established above cannot be met after they have been agreed upon, the party responsible for providing that date must notify a Home Improvement Program staff immediately to provide an alternate date. This action may cause further delays. All other parties will be notified if the established date must be changed and must agree to a new date. Appendix 6 Page 30 Home Improvement Program Project Relocation Plan Approval Date Policy/Procedure Received: Project Address: Homeowner Name(s): Homeowner Address: city State: Zip: Homeowner Phone: Contractor : City State: Zip: Contractor Address: Contractor Phone: By my /our signature(s) below, Uwe acknowledge and agree to the terms as written in the Lead -Based Paint Hazard Control Policy & Procedure and the Homeowner Protection Plan. I /We understand that it is my responsibility to approve specifications; review the bids and select a contractor (subject to Home Improvement Program approval), to sign the construction contracts and change orders, and to approve the payouts. Homeowner Signature Date Homeowner Signature Community Development staff Signature City of Denton Community Development Division 601 E. Hickory, Suite B Denton, TX 76205 (940) 349 -7726 Appendix 6 Page 31 Homeowner Signature Date Date Project Relocation Plan Approval Page 2 Steps for relocating a family: A draft of relocation plan will be made by the Home Improvement Program. Contractor will submit plan of work schedule stressing all exterior work to be completed. 2. Home Improvement Program informs property homeowner(s) of abatement commencement, preferably 10 days before. Home Improvement Program starts paperwork and will advise and consult regarding extended period of relocation. 4. Home Improvement Program will inform or provide the family with: a. Information of time span required for the relocation. b. Everything they should take that they will need for the maximum number of days they will be relocated. C. All pets should be relocated or boarded. 7. Homeowner(s) will be made responsible for insuring that all household members, pets and belongings are protected during lead hazard control work by complying with the "Homeowner Protection and Project Relocation Plans" and agree to make the house available to contractor to begin project. Homeowner(s) will provide keys, as required, to the contractor. Home Improvement Program will inform Homeowner(s) of final clearance. If house does not pass clearance, then Home Improvement Program will inform property homeowner(s). Appendix 6 Page 32 City of Denton Community Development Home Improvement Program 601 E. Hickory, suite B, Denton, TX 76205 HOMEOWNER'S SERVICE AGREEMENT Uwe, (Owner Name), hereinafter referred to as Owner, have applied for assistance from the Home Improvement Program to complete a rehab and will include lead hazard reduction and controls on my property. If this assistance is granted, I understand that the Home Improvement Program will be inspecting my property, acting as Home Improvement Program's technical agent and monitor of the lead hazard control project for the property, which is located at Property Address. Owner's Responsibilities I understand that even though Home Improvement Program provides a deferred loan *, it is my responsibility to approve specifications; review the bids and select a contractor (subject to Home Improvement Program approval), to sign the construction contracts and change orders, and to approve the payouts. I acknowledge that I have been advised that I should inspect the work as frequently as possible, and discuss with the contractor, or Home Improvement Program personnel any difficulties or poor workmanship observed. I understand that once materials are in place that cost of repair or replacement is substantial. Owner Protection and Temporary Relocation During Lead Hazard Reduction In most jobs that require lead hazard reduction, our agency requires appropriate actions to be taken to protect owner(s) and all members of the household from lead -based paint hazards. In those cases, owner(s) or no member of the household may not enter the worksite during the lead hazard reduction activities. Re -entry is permitted only after such activities are completed and the unit has passed a clearance examination. Owners of the unit do not have to be relocated if. rehab work will not disturb lead -based paint or create lead - contaminated dust; hazard reduction activities can be completed within one 8 hour daytime period and the worksite is contained to prevent safety, health or environmental hazards; exterior -only work is being performed where the windows, doors, ventilation intakes and other openings near the worksite are sealed during hazard reduction activities and cleaned afterward, allowing for a lead-free entry to be maintained, hazard reduction activities will be completed within 5 calendar days and the work area is sealed, the area within 10 feet of the containment area is cleaned each day, owner(s) or members of the household have safe access to sleeping areas, bathroom and kitchen facilities in the same housing unit or in another convenient location; and owner(s)or members of the household are not permitted into the worksites until after clearance has been achieved. If occupied units are to undergo more extensive lead hazard reduction activities, the owner(s) or members of the household must be temporarily relocated. Most often, furniture and owner's or members of the household's belongings can be covered and sealed with protective plastic sheeting, although storage of major furniture and removal of all small furnishings during the hazardous materials reduction work may sometimes be necessary. The owner(s) is responsible for carefully packing all breakables; removing all clothing from closets, etc. During the hazard reduction work, only workers trained in lead hazard reduction may enter the work site. This means that owner(s) and members of the household are not permitted to return to the work site during the day or at night. If you have special needs to re -enter the site, please contact your rehab specialist. Only when the unit has been cleaned to the federally- mandated standards and passed a clearance examination is it safe and permissible to return to your home. The rehab specialist will notify you with an Authorization for Re- Occupancy. Sometimes the jobs are completed in stages, with the lead hazard reduction work occurring first and the other renovation work following. In these cases interim dust lead clearance must be obtained prior to re- occupancy by the owner(s) or members of the household and other non -lead related rehabilitation workers. Final lead dust clearance must be repeated following the rehabilitation work to verify that the residence is free of lead hazards. (Note: HUD has advised that relocation of elderly owners is not typically required, so long as complete disclosure of the nature of the work is provided and informed consent of the elderly owner(s) is obtained before commencement of the work.) Home Improvement Program's Role A. I understand that Home Improvement Program provides work -in- progress inspections to me for their protection. However, these services are not a guarantee of any type, and do not make Home Improvement Program responsible for the quality of the work, or responsible for any contractor or worker's performance. Appendix 6 Page 33 C. I understand that the staff of Home Improvement Program cannot be personally available for all inspections of each segment of the work performed on the construction site and that both Home Improvement Program and its employees, members, officers, and directors will reasonably rely on the competence and skill of each individual contractor as is normal in the course of such business negotiations, transactions, and execution of the contract. Home Improvement Program's Emergency Authority I authorize the staff of Home Improvement Program to issue emergency orders and /or instructions in the event that the Residential Construction Specialist is available to observe the work in progress, and can anticipate that without authority to issue such instructions, work will be done which will substantially alter the intentions of the homeowner(s), injure the property or violate the specifications of the contact. Upon the issuance of such orders or instructions, Home Improvement Program's Residential Construction Specialist will contact the general contractor or subcontractor most directly responsible for the work in question and the homeowner(s) as quickly as possible, and all parties will examine and approve or re- negotiate the work in question before the job proceeds. General Provisions A. I further agree to hold harmless and indemnify Home Improvement Program and its employees, members, officers, and directors, in connection with acts performed by them which would reasonably be associated with consultation, technical advice, financial counseling, loan processing, property inspections, and other related activities. B. I authorize the staff of Home Improvement Program to obtain or provide specific reports, such as personal credit reports, property title and tax searches, building code inspection reports, property appraisals, repair specifications, cost estimates, contractors bids (and such other reports which said staff deems necessary to perform its functions). C. Whenever the pronouns 1," "my," "we" are used in this agreement they shall mean "we," "our," and "us" respectively, if more than one owner signs below. Homeowner's Signature Homeowner's Signature Appendix 6 Page 34 Date Date COMMUNITY DEVELOPMENT DIVISION (940) 349 -7726 Texas State Relay (telephone device for the deaf) by calling: TDD (800) 735 -2989 Applicant is subject to all guidelines changes. www.cityofdenton.com ADA/EOE /ADEA EQUAL HOUSING OPPORTUNTY City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -794, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Human Resources CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised City employee benefits and services policy regarding Tuition Reimbursement; and declaring an effective date. BACKGROUND It is the purpose of the City of Denton to provide quality services for its citizens by encouraging upward mobility, employment development, and excellence of performance by sharing the expense of approved courses and educational programs. Employee growth and engagement depends on having opportunities to gain greater knowledge, skills, or abilities to do their work through in -house training or encouraging continuing education through advanced educational opportunities. Assisting employees with the cost of tuition is beneficial, not only for the employee, but the organization as a whole. Tuition reimbursement assists employees in broadening their knowledge of their current position or preparing them for possible assumption of new job responsibilities with the City. The City instituted an educational incentive benefit program and policy in 1985 with minor revisions in 2002. The program provides tuition reimbursement for regular, full-time employees (who have completed at least six months of service with the City) attending accredited educational institutions, as long as they make the appropriate grades and meet established timelines. Currently the City reimburses eligible employees 80% of tuition and mandatory fees. The policy uses the fee structure of the two local universities as a cap. Specifically, Tuition Reimbursement Policy (4107.09) states that "participants will be reimbursed based upon the actual fee schedule of the school they attend unless the fee schedule is greater than that of the University of North Texas (UNT) or Texas Woman's University (TWU), in which case the reimbursement shall be calculated at the equivalent rate of UNT or TWU (whichever is greater)." Funding is included in the City Manager's proposed budget for FY 15/16 to support the current program. Additional money is needed to cover the increasing cost of tuition and mandatory fees. The proposed budget also includes funding to increase tuition reimbursement for eligible employees from 80% to 100 %. In addition to changing the reimbursement amount, staff is recommending making the following revisions to the policy: 1. Removing the limitation of two courses per semester and allowing participants to take up to eight City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -794, Version: 1 courses per academic year (unrestricted by semester) not to exceed $5,250 per calendar year. The policy was written when we had traditional semesters (spring, summer I, summer II, fall) and classroom instruction. Higher education has changed tremendously over the years and now offers more flexible options (mini - mesters, on -line classes, etc.) By not limiting the number of classes per semester, employees can be flexible with their needs. 2. Adding language regarding the maximum number of credit hours eligible for reimbursement for internships that are required as part of an advanced degree. 3. Changing the tuition reimbursement repayment requirement. Instead of paying back the City the full amount reimbursed within a two year period, employees would be required to pay as follows: • If an employee leaves the City within 0 -12 months after receiving reimbursement, they must repay monies at 100 %; • If an employee leaves after 12 months but prior to 24 months after receiving reimbursement, they must repay monies at 50 %. The policy before you has also been divided into two sections. As originally written, all the language fell under a "Policy Statement," which requires City Council approval for any changes, even minor changes. We are trying to make this policy more consistent with other policies, which include a "Policy Statement" as well as an "Administrative Procedures" section that can be implemented and changed by the City Manager. While revising this policy, staff took the opportunity to create more sections and reorganize the information for easier readability, which is why there appears to be so many changes. The substantive changes have been highlighted above in this agenda information sheet. When policies are changed, the Human Resources Department solicits feedback from the Policy Review Committee. The Policy Review Committee is comprised of approximately 20 employees at various levels representing different departments /divisions. The members are expected to distribute the proposed changes to individuals in their area and solicit comments, questions, and concerns regarding the proposed changes. Members of the employee Policy Review Committee support the proposed changes. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Tuition Reimbursement policy as drafted. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action or formal review on this agenda item, with the exception of what has been reviewed or discussed as part of the budget presentation(s). FISCAL INFORMATION $25,000 has been included in the FY 15/16 budget, which is designed to help cover the increasing costs associated with the existing program (reimbursement of 80 %) as well as to increase the reimbursement level to City of Denton Page 2 of 3 Printed on 9/10/2015 File M ID 15 -794, Version: 1 100 %. F,XHTRTTS Exhibit 1- Redline Version of Tuition Reimbursement Policy Exhibit 2- Proposed Version of Tuition Reimbursement Policy Exhibit 3- Resolution Respectfully submitted: Carla Romine- Haggmark Director of Human Resources City of Denton Page 3 of 3 Printed on 9/10/2015 Exhibit 1 CITY OF DENTON POLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE PAGE 1 OF -4 SECTION: HUMAN RESOURCES REFERENCE NUMBER: 107.09 SUBJECT: EMPLOYEE BENEFITS AND SERVICES INITIAL EFFECTIVE DATE: — 12/16/85 TITLE: TUITION REIMBURSEMENT LAST REVISION DATE: 01(19210/1/2015 1. POLICY STATEMENT It is the purpose of the City of Denton to provide quality services for its citizens by encouraging upward mobility, employee development, and excellence of performance by sharing the expense of approved courses and educational programs. — Tuition reimbursement assists employees in broadening their knowledge of their current position or preparing them for possible assumption of new job responsibilities within the City. The availability of tuition reimbursement is subject to City Council approved funding levels. The percentage of potential tuition reimbursement will be established annually part of the City's budget process based upon anticipated participation and available funding_ ADMINISTRATIVE PROCEDURES L DEFINITIONS A. A course or educational program is a class of instruction taught at or by an accredited college, university, or trade school. B. A tuition reimbursement participant is an eligible employee who has submitted a Tuition Reimbursement Agreement Form. (Refer to Section III, B for eligibility requirements). EMPLOYEE ELIGIBILITY GENEPAlm h. _ 1 1 t 4. B. A. To be considered for participation in the tuition reimbursement program, an individual must be a regular full -time employee and have completed at least six months service with the City prior to application approval FWPOLICY /107.09 SEEM — LWETM s A. To be considered for participation in the tuition reimbursement program, an individual must be a regular full -time employee and have completed at least six months service with the City prior to application approval FWPOLICY /107.09 PAGE 2 OF 4 OL1CY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 107.09 reimbursement until successful completion of the Managed Action Plan. III. COURSE ELIGIBILITY D-A. Classroom and on -line courses GeffH-es­offered by accredited colleges, universities, or trade schools are eligible for tuition reimbursement if they are: 1. Required by a degree plan which is related to a City career field, 2. Required by a trade school course of study which is related to a City career field; or, 3. Related to a City career field as determined by the Director of the Human Resources Department or designee. B. Seminars, conferences, and courses unrelated to a City career field are ineligible for tuition reimbursement. — Approval for reimbursement for seminars and conferences is subject to departmental training budgets. Non - credit continuing education courses containing the same or similar information as received in previous courses (repeat courses) as well as credit obtained under the College Level Examination Program (CLEP) are not eligible for tuition reimbursement. IV. GUIDELINES A. Reimbursement is limited to ei ht courses per academic year, not to exceed $5, -250 per academic B. As a condition of reimbursement, participants must earn a grade of "C" or above in undergraduate level courses, "B" or above in graduate level courses, and "Pass" in Pass /Fail courses. For those courses for which grades are not assigned, a certificate of completion will serve as proof of course completion. R. Reimbursement for thesis or dissertation will be paid when the participant submits ^r &ffi is a final grade report or transcript that records a passing grade. - Reimbursement will be paid for the required number of credit hours (six for thesis and twelve for dissertation) regardless of the actual number of hours taken. C. FWPOLICY /107.09 PAGE 3 OF 4 OLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 1 107.09 D. For advanced degrees requiring Internships as part of the degree plan, the Cit y will reimburse a maximum of 12 credit hours, regardless of the actual number of hours worked as an intern. H, -E. L—. All I—effespendenee eouFses line +—;_;ng courses must be approved by the Human Resources Department prior to registration. Participants wishing to receive reimbursement for such must provide official scholastic accreditation documentation and an official description of the course(s) or training to the Human Resources Department prior to registration. M A.—EXPENSES INELIGIBLE FOR REIMBURSEMENT V. not included in the mandatory fees, are not eligible for reimbursement. FWPOLICY/107.09 PAGE 4 OF 4 OL1CY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 107.09 C. The City will not aav the cost of tuition which has been or shall be paid from other sources such as scholarshias,grants. Veterans' benefits, student loans. or other subsidies. In the event of partial scholarship or grant, reimbursement will be calculated based on the actual expense to the Maim= e. Tuition reimbursement will not be yranted for audited courses. B- �.���... '.... �a- ��wa�r�atw.w'�a���r�*w�3a�r� A. To begin participation in the Tuition Reimbursement program, employees must meet with the Human Resources Director or designee to obtain a Tuition Reimbursement Agreement Form and Tuition Reimbursement Policy fiem the in ResetiFees Depi . . – Employees must complete and submit the Tuition Reimbursement Agreement to the Human Resources Department prior to the start of the course. At least 30 days in advance is suggested. B. To request reimbursement for a specific semester, participants must obtain a "Tuition Reimbursement Semester Registration Form" from the Human Resources Department. –The completed Registration Form will document the course titles and number of credit hours for which the participant intends to register. -The completed Tuition Reimbursement Semester Registration Form must be submitted to the Human Resources Department prior to the start of the semester. Participants will only be reimbursed for the number of hours they have specifically completed under Section ITV of this policy. -If courses change from the initial registration form,, the Human Resources Department must be contacted. C. Participants will pay all costs according to the parameters of their educational institution. Within 21 days of the end of the school term, participants will submit copies of the following to the Human Resources Department for reimbursement approval: 1. An itemized statement of tuition and fees, 2. Proof of payment which shall consist of an itemized receipt from the school indicating the amount paid by the student employee, and 3. A final a oaY -grade report or transcript provided by the college, university, or trade school. D. Participants will be reimbursed based upon the actual fee schedule of the school they attend unless the fee schedule exceeds that of the University of North Texas (UNT) or Texas Woman's University (TWU), in which case the reimbursement will be calculated at the equivalent rate of UNT or TWU (whichever is greater). Tuition reimbursement will be processed through Human Resources paid �, �– ntal fund at the end of each semester. Reimbursement FWPOLICY /107.09 PAGE 5 OF 4 OLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 1 107.09 requests submitted after the deadline will be denied unless prior permission is granted by the Director of Human Resources or designee. F. The Human Resources Director may on behalf of the Executive Committee 922rove and authorize reimbursement. V111. TERMINATION If an employee resigns or is terminated for any reason prior to course completion, the City shall not be obligated to reimburse any part of the expense. An employee who resigns or is terminated less than two years after completion of a reimbursed course must return the monies to the City upon termination, using the following Midelines:-. they must rgpay monies at 100%. If an employee resigns or is terminated after 12 months but prior to 24 months after receiving reimbursement, they must repay monies at 50%. Employees terminated due to a reduction in force shall not be required to reimburse the monies. FWPOLICY/107.09 Exhibit 2 CITY OF DENTON POLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE PAGE 1 OF -4 SECTION: HUMAN RESOURCES REFERENCE NUMBER: 107.09 SUBJECT: EMPLOYEE BENEFITS AND SERVICES INITIAL EFFECTIVE DATE: 12/16/85 TITLE: TUITION REIMBURSEMENT LAST REVISION DATE: 10/1/2015 POLICY STATEMENT It is the purpose of the City of Denton to provide quality services for its citizens by encouraging upward mobility, employee development, and excellence of performance by sharing the expense of approved courses and educational programs. Tuition reimbursement assists employees in broadening their knowledge of their current position or preparing them for possible assumption of new job responsibilities within the City. The availability of tuition reimbursement is subject to City Council approved funding levels. The percentage of potential tuition reimbursement will be established annually as part of the City's budget process based upon anticipated participation and available funding. ADMINISTRATIVE PROCEDURES L DEFINITIONS A. A course or educational program is a class of instruction taught at or by an accredited college, university, or trade school. B. A tuition reimbursement participant is an eligible employee who has submitted a Tuition Reimbursement Agreement Form. (Refer to Section III, B for eligibility requirements). II. EMPLOYEE ELIGIBILITY A. To be considered for participation in the tuition reimbursement program, an individual must be a regular full -time employee and have completed at least six months service with the City prior to application approval B. Employees who have been placed on a Managed Action Plan are not eligible for tuition reimbursement until successful completion of the Managed Action Plan. III. COURSE ELIGIBILITY A. Classroom and on -line courses offered by accredited colleges, universities, or trade schools are eligible for tuition reimbursement if they are: FWPOLICY /107.09 PAGE 2 OF 4 OLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 107.09 1. Required by a degree plan which is related to a City career field, 2. Required by a trade school course of study which is related to a City career field; or, 3. Related to a City career field as determined by the Director of the Human Resources Department or designee. B. Seminars, conferences, and courses unrelated to a City career field are ineligible for tuition reimbursement. Approval for reimbursement for seminars and conferences is subject to departmental training budgets. Non - credit continuing education courses containing the same or similar information as received in previous courses (repeat courses) as well as credit obtained under the College Level Examination Program (CLEP) are not eligible for tuition reimbursement. IV. GUIDELINES A. Reimbursement is limited to eight courses per academic year, not to exceed $5,250 per academic year. B. As a condition of reimbursement, participants must earn a grade of "C" or above in undergraduate level courses, "B" or above in graduate level courses, and "Pass" in Pass /Fail courses. For those courses for which grades are not assigned, a certificate of completion will serve as proof of course completion. C. Reimbursement for thesis or dissertation will be paid when the participant submits a final grade report or transcript that records a passing grade. Reimbursement will be paid for the required number of credit hours (six for thesis and twelve for dissertation) regardless of the actual number of hours taken. D. For advanced degrees requiring Internships as part of the degree plan, the City will reimburse a maximum of 12 credit hours, regardless of the actual number of hours worked as an intern. E. All courses must be approved by the Human Resources Department prior to registration. Participants wishing to receive reimbursement for such must provide official scholastic accreditation documentation and an official description of the course(s) or training to the Human Resources Department prior to registration. V. EXPENSES INELIGIBLE FOR REIMBURSEMENT A. Parking, books, supplies, or other expenses in connection with courses to be taken, which are not included in the mandatory fees, are not eligible for reimbursement. B. Tuition reimbursement will be paid only once for each approved course. The City will not pay FWPOLICY /107.09 PAGE 3 OF 4 OLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 107.09 tuition reimbursement for courses for which tuition reimbursement has already been received by the employee. C. The City will not pay the cost of tuition which has been or shall be paid from other sources such as scholarships, grants, Veterans' benefits, student loans, or other subsidies. In the event of partial scholarship or grant, reimbursement will be calculated based on the actual expense to the employee. D. Tuition reimbursement will not be granted for audited courses. VI. APPLICATION AND REIMBURSEMENT PROCESS A. To begin participation in the Tuition Reimbursement program, employees must meet with the Human Resources Director or designee to obtain a Tuition Reimbursement Agreement Form and Tuition Reimbursement Policy. Employees must complete and submit the Tuition Reimbursement Agreement to the Human Resources Department prior to the start of the course. At least 30 days in advance is suggested. B. To request reimbursement for a specific semester, participants must obtain a "Tuition Reimbursement Semester Registration Form" from the Human Resources Department. The completed Registration Form will document the course titles and number of credit hours for which the participant intends to register. The completed Tuition Reimbursement Semester Registration Form must be submitted to the Human Resources Department prior to the start of the semester. Participants will only be reimbursed for the number of hours they have specifically completed under Section IV of this policy. If courses change from the initial registration form, the Human Resources Department must be contacted. C. Participants will pay all costs according to the parameters of their educational institution. Within 21 days of the end of the school term, participants will submit copies of the following to the Human Resources Department for reimbursement approval: 1. An itemized statement of tuition and fees, 2. Proof of payment which shall consist of an itemized receipt from the school indicating the amount paid by the student employee, and 3. A final grade report or transcript provided by the college, university, or trade school. D. Participants will be reimbursed based upon the actual fee schedule of the school they attend unless the fee schedule exceeds that of the University of North Texas (UNT) or Texas Woman's University (TWU), in which case the reimbursement will be calculated at the equivalent rate of UNT or TWU (whichever is greater). Tuition reimbursement will be processed through Human Resources at the end of each semester. Reimbursement requests submitted after the deadline will FWPOLICY /107.09 PAGE 4 OF 4 OLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: TUITION REIMBURSEMENT REFERENCE NUMBER: 107.09 be denied unless prior permission is granted by the Director of Human Resources or designee. E. Mandatory fees shall be reimbursed as part of the tuition rate charges. F. The Human Resources Director may on behalf of the Executive Committee approve and authorize reimbursement. VII. TERMINATION If an employee resigns or is terminated for any reason prior to course completion, the City shall not be obligated to reimburse any part of the expense. An employee who resigns or is terminated less than two years after completion of a reimbursed course must return the monies to the City upon termination, using the following guidelines: If an employee resigns or is terminated within 0 -12 months after receiving reimbursement, they must repay monies at 100 %. If an employee resigns or is terminated after 12 months but prior to 24 months after receiving reimbursement, they must repay monies at 50 %. Employees terminated due to a reduction in force shall not be required to reimburse the monies. FWPOLICY /107.09 Exhibit 3 z:Aresolutions \15 \tuition reimbursement policy amendment.docx RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY EMPLOYEE BENEFITS AND SERVICES POLICY REGARDING TUITION REIMBURSEMENT; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Policy numbered 107.09 "Tuition Reimbursement" of the Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy 107.09. SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: -�-- City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -822, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. Date: September 15, 2015 SUBJECT Consider adoption of an ordinance approving a city sponsorship in an amount not to exceed $3,500.00 of in- kind services and resources for the Denton County Veterans Coalition's Stand Down event to be held in the Civic Center located at 321 E. McKinney Street October 22, 2015; and providing an effective date. BACKGROUND The City is being asked to sponsor up to $3,500 of in -kind services and resources for the first Stand Down event to provide assistance to the homeless veterans in Denton County, which includes a waiver of $3,500 of the $4,185 Civic Center rental fees The Stand Down is organized by the Denton County Veterans Coalition and various volunteers. Attendance is expected to be approximately 200 -250. The Stand Down will provide an opportunity for homeless and very low income veterans to receive services and supplies that they ordinarily don't have access to. Examples of free services to be provided to the veterans are free: haircuts, dental services, meals, counseling, and several other services. Other non - profits and local/state agencies plan to provide informational materials to the veterans who might benefit from their services. PRIOR ACTION/REVIEW The Legal Department has advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate or for free require Council approval. This is the first time the Denton County Veterans Coalition's Stand Down event is being presented to the City Council for approval. FISCAL INFORMATION The cost to the City to sponsor this event is $3,500 and includes use of the Civic Center and Quakertown Park for which the City is recognized as a sponsor at a level equal to this value. EXHIBITS 1. Letter of Request 2. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -822, Version: 1 Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 August 14, 2015 City of Denton Director of Parks and Recreation 601 E. Hickory St. Ste B Denton, Texas 76205 RE: Request for Co- sponsorship Mr. Vorel, The Denton County Veterans Coalition has the opportunity to sponsor the first ever military Veterans Stand Down in our county. The US Veterans Administration conducts annual stand down events for homeless Veterans in Dallas, Fort Worth and many other cities across the country. Stand Downs provide an opportunity for homeless and very low income Veterans to receive services and supplies that they ordinarily don't have access to. In addition, we intend to provide live music and food for the Veterans who attend. We anticipate other non - profits and local /state agencies to attend and provide informational material to Veterans who might benefit from their services. There is probably no better venue for this event than the Denton Civic Center and the adjacent park area. However, we have a price quote of $4,185 to use the facility. Our Coalition achieved federal non- profit status less than a year ago and has limited operating funds. We would appreciate it if the City of Denton would provide $3500 as a co- sponsor. The Military Veteran Peer Network of Denton County has agreed to cover the rest. The Stand Down is scheduled for Thursday, October 22, 2015. We will reach out to all homeless and low income Veterans in Denton County and encourage them to attend. We anticipate about 200 -250 Veterans and family members will attend. If you have any questions, please contact Ginger Simonson who is our project manager for the Stand Down Event. Her cell # is 817 - 683 -2870 and 11, ' „ @, „IT fl. rn. Thank ou fir your consideration. Singe ely,° D ,,.lsen Secrel�ry, Denton County Veterans Coalition EXHIBIT 2 \\C0DAD\Departrnents\Lega1\our Documents\Ordinances\15\Denton County Veterans Coalition's Stand Down Sponsorship.docx k -ir .11,12mbi4k "S AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $3,500.00 OF IN-KIND SERVICES AND RESOURCES FOR THE DENTON COUNTY VETERANS COALITION'S STAND DOWN EVENT TO BE HELD IN THE CIVIC CENTER LOCATED AT 321 E. MCKINNEY STREET OCTOBER 22, 2015; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Denton County Veterans Coalition is requesting the City of Denton to participate as a sponsor, up to $3,500.00 of in-kind services and resources, for the first Stand Down event to provide assistance to the homeless veterans in Denton County to be held in the Civic Center October 22, 2015; and WHEREAS, the City of Denton has sponsored up to $3,500.00 of in-kind services and resources for the event waiving $3,500.00 of the $4,185.00 Civic Center and Quakertown Park rental fees; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in-kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $3,500.00 of in-kind services for the event to be held in the Civic Center October 22, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor At a level not to exceed $3,500.00 of in- kind services and resources, waiving the Civic Center and Quakertown Park rental fees, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR \\CODAD\Departments\Legal\Our Documents\0rdinancesN1S\Denton, County Veterans Coalition's Stand Down Sponsorship.docx ATTEST: JENNIFER WALTERS, CITY SECRETARY m APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -828, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Human Resources CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider approval of a resolution of the City of Denton, Texas approving a revised City standards of conducts policy for employees regarding Use of Tobacco Products and Electronic Cigarettes; and declaring an effective date. BACKGROUND The original Use of Tobacco Products policy was put into effect in June of 1992. Since that time there have been significant advancements in our knowledge regarding the long -term health impacts of tobacco use. During that time, we have also experienced an increase in the use of smokeless tobacco products and the introduction of electronic cigarettes. In addition, the Denton City Council has passed significant changes to the Smoking Ordinance. Given all these factors, it was staff's opinion that Policy 108.03 - Use of Tobacco Products needed to be revised. Foremost in our minds was addressing the health impact on our employees of them using tobacco products. As an organization, we have had an on -going challenge of improving employee health and managing rising health care costs. The City has taken many proactive steps to address these challenges including, but not limited to, implementing a Healthy Incentive Program beginning in 2010; opening an employee health clinic in December of 2011; promoting various wellness initiatives throughout the years; and evaluating our health insurance plan annually and incorporating plan design changes as needed. Based on a report provided by CareHere, our third party administrator for our employee health clinic, 28.33% of our employees who participated in our annual health risk assessment in 2014 reported they smoked or used tobacco products. Please understand, though, that this is a self - reported behavior and most likely under - represents the number of employees who smoke or use tobacco products. Smokers and smokeless tobacco users are statistically known to drive up health care costs. Second -hand smoke has been linked to many health problems as well. In addition to our goal of improving the overall health of our employees, we have a responsibility to promote a professional image to our citizens. Limiting the use of tobacco products helps us in this quest. With the introduction of electronic cigarettes (e- cigs), and the increased use of them by our employees in the City of Denton Page 1 of 4 Printed on 9/10/2015 File M ID 15 -828, Version: 1 workplace, the City needed to modify this policy to include limitations on these products as well. Finally, in December of 2012, the City Council adopted Ordinance 2012 -367 that designated portions of certain retail establishments, public buildings, food establishments, and places of employment as non - smoking areas. In addition, in April 2015, the City Council approved Ordinance 2015 -121. This new ordinance replaced 2012- 367 and extended the same prohibition to electronic cigarettes, among other issues. The proposed revisions to the City policy will parallel some of the changes contained in the amended ordinances. The City's "Use of Tobacco Products" policy does not currently incorporate language to restrict the use of electronic cigarettes or vapor products. The current policy also allows for smoking as long as the employee is at least twenty (20) feet away from an entrance or exit to the building. This is inconsistent with language in City Ordinance 42012 -367 and 2015 -121. Specifically Section 2 (a) states the following: "It is unlawful for any person to smoke or possess a lit tobacco, weed or other plant product or to smoke an electronic cigarette (e- cigarette) in any of the following places: (10) Parks facilities and public libraries, including exterior corridors, and any area within 30 feet of any public entrance thereto." As a result, the City's "Use of Tobacco Products" policy needs to be changed to be consistent with Ordinances 42012 -367 and 42015 -121. Additionally, the following major revisions are also proposed: 0 Changing the title from "Use of Tobacco Products" to "Use of Tobacco Products and Electronic Cigarettes "; • Expanding the policy statement and administrative procedures to ban the use of electronic cigarettes; • Expanding the policy statement and administrative procedures to ban the use of smoking tobacco products, smokeless tobacco products, and electronic cigarettes by City employees on all City property, including buildings and parking lots, vehicles, equipment, and job sites; • Defining "Electronic Cigarettes" as well as "City Building," "City Property," "City Worksite," and "Equipment "; • Expanding the definition of "Smoking" to include herbal cigarettes; • Expanding the definition of Smokeless Tobacco Products" to include any product that imitates types of smokeless tobacco (e.g. herbal dip or snuff); • Prohibiting employees from smoking, and using of smokeless tobacco products and electronic cigarettes, in or on any City property, vehicles, and equipment at all times, including breaks and lunches (including personal vehicles while parked on City property; and • Allowing employees 12 months from the effective date of the revised policy to completely comply with the ban on all tobacco products and electronic cigarettes as outlined in the policy. The proposed revisions have been discussed with the Leadership Team, as well as the Policy Review Committee, which is comprised of approximately 20 employees at various levels representing different departments /divisions. We recognize there may be some resistance to this policy change, and some employees may need assistance to fully comply. However, despite these challenges, management believes this change is an important and worthwhile endeavor. In addition to the 12 -month window for full compliance, we will promote the following tobacco cessation programs and resources to assist employees: City of Denton Page 2 of 4 Printed on 9/10/2015 File #: ID 15 -828, Version: 1 • The City's health insurance plan covers some smoking cessation medication (prescription and over -the- counter) at zero cost to the employee. 0 Smoking cessation workshops and /or education are available through the American Heart Association, City's clinic provider (CareHere), and the City's Employee Assistance Program. We will ensure information is available on all of their programs and schedule on -site workshops as needed. 0 Support through counseling services is offered by the City's Employee Assistance Program as well as the City's disability provider, The Hartford. Employees can call and talk to a counselor or schedule face -to -face visits. 0 Support is available through a Quitline provided by smokefree.gov. Quitlines are staffed by counselors trained specifically to help smokers quit, and they deliver free information, advice, support, and referrals to tobacco users. OPTIONS Approve the policy as proposed; not approve the policy; or make modifications. RECOMMENDATION Staff recommends that the City Council amend the Use of Tobacco Products and Electronic Cigarettes policy as drafted. ESTIMATED SCHEDULE OF PROJECT If approved, this policy revision will go into effect on October 1, 2015. Employees will have until October 1, 2016, to fully comply with the policy changes. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Council has received two (2) Informal Staff reports (February 13, 2015 and August 7, 2015) on the proposed changes to this policy. FISCAL INFORMATION There is no direct fiscal impact related to these policy changes; however, it is our hope that these policy changes will encourage employees to quit using these types of products, which in turn could lead to lower overall health care costs in the future. EXHIBITS Exhibit 1 - Redline Version of Use of Tobacco Products Policy Exhibit 2 - Proposed Version of Use of Tobacco Products and Electronic Cigarettes Policy City of Denton Page 3 of 4 Printed on 9/10/2015 File #: ID 15 -828, Version: 1 Exhibit 3 - Resolution Respectfully submitted: Carla Romine- Haggmark Director of Human Resources Prepared by: Scott Payne Risk Manager City of Denton Page 4 of 4 Printed on 9/10/2015 CITY OF DENTON PAGE I OF -2 POLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 108.03 SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES INITIAL- EFFECTIVE DATE: 06/01/92 TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC LAST REVISION DATE: CIGARETTES 10/01/15 I. POLICY STATEMENT The City of Denton desires to conduct its operations with the utmost regard for the safety of its employees, its customers, and the public. One of the most valuable assets of the City of Denton is its employee workforce. In recognition of that belief, the City promotes the health, safety, and well -being of each individual through progressive health and benefit programs. The City's obligations include concern for all employees in all areas of known hazards as well as promotingaa professional Environmental tobacco smoke is a carcinogen shown to cause disease, including cancer, in healthy non - smokers, as well as aggravate allergic reactions including watery eyes, coughing and headaches in susceptible individuals, all of which lead to impaired performance and increased health care costs. in addition, The use of smokeless tobacco is offensive to many people, citizens and co- workers alike. It is unknown how much nicotine or other botentially harmful chemicals are beinix inhaled with electronic citiarettes: therefore_ their IL ADMINISTRATIVE PROCEDURES A. Definitions: "Mtini ipa Fae4ityCity Building" means any building or structure owned, leased, rented or operated by the City of Denton. "City Property" means all property owned, rented or leased by the City. This shall include open areas surrounding City buildings (e.g. parking lots, storage yards, etc.). "City Worksite" means any location, not on City Property, where City employees are performing duties on behalf of the City (e.g. street, right -of -way, easement, citizen's property, FWPOLICY /108.03A PAGE 2 OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC REFERENCE NUMBER: CIGARETTES 108.03 9M "Electronic cigarette" (e. v. e-civarette) is an electronic inhaler meant to simulate and be a substitute for tobacco smoking. For purposes of this policy, it also includes electronic vMing devices, personal vaporizers (PV), or electronic nicotine delivery s, stems (ENDS). "Equipment" means mobile equipment other than cars, trucks, buses or vans (e.g. mowers, compactors, scrapers, front-end loaders, backhoes, trenchers, augers, rollers, bulldozers, etc.). "Smoking" means the combustion of any product or material containing tobacco as well as herbal civarettes. "Smokeless Tobacco Products" means any product or preparation containing tobacco, including, but not limited to, chewing tobacco, snuff, and smokeless tobacco, as well as any product that imitates types of smokeless tobacco (e.g., herbal dip or snuff). I.-.u+l Fiet, iiiielffd4*g efgaFettles, e+#aFs, OF Pipe t0baeoe. "Vehicle" means any car, truck, bus, or van owned or operated by the City of Denton, used for conveying persons, supplies, equipment, etc. .164ewiffg-eExceptions will be made in desi WWWW Ctispeets—and witnesses ma-Y 4n. es.gii-atled afeas Of the peliee Pep----FHien+ during interviews and interrogations, and for individuals confined to the City - iail. Employees may not smoke, -use --smo less tobacco, or electronic civarettes in these areas at any time. FWPOLICY/108.03A PAGE 3 OF 3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC REFERENCE NUMBER: CIGARETTES 108.03 ........ .... D. The �ee+IoF of Facilities Matintenawe-Manaver, or designee, shall conspicuously place "No Smokinv, Use of Smokeless g+gekiffgTobacco, or-Electronic Cigarettes" signs at the entrances of all MHURie—i-F-al buildings and shall additionally place signs designating authorized .RFRok4*g-afea tobacco and electronic cigarette use in the Police Department. WA ;arm; mg-oz.- [TOM -1 F eetFeflie eitB e��es 4*-violatesieR efm-this E. Any employee who tises tebffeee pfe-tiets an-, 6 e -11 — policy is subject to disciplinary action as outlined in Policy 109.01 Disciplinary Action. F_4.—Smoking Cessation Programs: City employees who need or desire assistance with &Epefiefiee t3ef.16Fffiffflee of t3efsolial diffifl.etilties whi4+--overcoming a nicotine addiction may seek help through the City's health insurance program or Employee Assistance Program (EAP), outlined in Policy 107.10 Employee Assistance Program. -Interested employees or supervisors may contact a representative of the Human Resources Department for assistance. G. Supervisors are responsible and accountable for communicating this policy to, and enforcing FWPOLICY/108.03A PAGE 4 OF 3 POLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC REFERENCE NUMBER: CIGARETTES 108.03 the policy upon, their employees. 4-H. Employees are expected to report violations of this policy to their immediate supervisor or someone in the chain of command. Employees reporting such violations shall not be subs ected to retaliation. FWPOLICY /108.03A CITY OF DENTON POLICY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE PAGE I OF -3 SECTION: HUMAN RESOURCES REFERENCE NUMBER: 108.03 SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES INITIAL EFFECTIVE DATE: 06/01/92 TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC LAST REVISION DATE: CIGARETTES 10101115 I. POLICY STATEMENT The City of Denton desires to conduct its operations with the utmost regard for the safety of its employees, its customers, and the public. One of the most valuable assets of the City of Denton is its employee workforce. In recognition of that belief, the City promotes the health, safety, and well -being of each individual through progressive health and benefit programs. The City's obligations include concern for all employees in all areas of known hazards as well as promoting a professional image. Environmental tobacco smoke is a carcinogen shown to cause disease, including cancer, in healthy non - smokers, as well as aggravate allergic reactions including watery eyes, coughing and headaches in susceptible individuals, all of which lead to impaired performance and increased health care costs. The use of smokeless tobacco is offensive to many people, citizens and co- workers alike. It is unknown how much nicotine or other potentially harmful chemicals are being inhaled with electronic cigarettes; therefore, their safety is unknown. A work environment in which employees are allowed to use smokeless tobacco products and /or electronic cigarettes promotes an image that many regard as unsanitary and /or unprofessional. It is therefore the policy of the City of Denton to prohibit the use of smoking tobacco products, smokeless tobacco products, and electronic cigarettes by City employees at all City worksites and on all City property while on duty, including buildings, vehicles, and equipment. IL ADMINISTRATIVE PROCEDURES A. Definitions: "City Building" means any building or structure owned, leased, rented or operated by the City of Denton. "City Property" means all property owned, rented or leased by the City. This shall include open areas surrounding City buildings (e.g. parking lots, storage yards, etc.). "City Worksite" means any location, not on City Property, where City employees are performing duties on behalf of the City (e.g. street, right -of -way, easement, citizen's property, etc.). "Electronic cigarette" (e.g. e- cigarette) is an electronic inhaler meant to simulate and be a substitute for tobacco smoking. For purposes of this policy, it also includes electronic vaping FWPOLICY /108.03A PAGE 2 OF 3 OL1CY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC REFERENCE NUMBER: CIGARETTES 108.03 devices, personal vaporizers (PV), or electronic nicotine delivery systems (ENDS). "Equipment" means mobile equipment other than cars, trucks, buses or vans (e.g. mowers, compactors, scrapers, front -end loaders, backhoes, trenchers, augers, rollers, bulldozers, etc.). "Smoking" means the combustion of any product or material containing tobacco as well as herbal cigarettes. "Smokeless Tobacco Products" means any product or preparation containing tobacco, including, but not limited to, chewing tobacco, snuff, and smokeless tobacco, as well as any product that imitates types of smokeless tobacco (e.g., herbal dip or snuff). "Vehicle" means any car, truck, bus, or van owned or operated by the City of Denton, used for conveying persons, supplies, equipment, etc. B. Smoking and the use of all smokeless tobacco products, as well as electronic cigarettes, is prohibited within any City building, on any City property or City worksite, or in any City vehicle or equipment at all times, including during breaks and lunches, if said break or lunch is conducted on City property or on a City worksite. This prohibition extends to employees smoking or using tobacco products or electronic cigarettes in their personal vehicle if it is parked on City property or at a City worksite. Exceptions will be made in designated areas of the Police Department for suspects and witnesses during interviews and interrogations, and for individuals confined to the City jail. Employees may not smoke, use smokeless tobacco, or electronic cigarettes in these areas at any time. C. The Facilities Manager, or designee, shall conspicuously place "No Smoking, Use of Smokeless Tobacco, or Electronic Cigarettes" signs at the entrances of all City buildings and shall additionally place signs designating authorized tobacco and electronic cigarette use in the Police Department. D. Employees will have 12 months from the date of this policy revision to completely comply with the prohibition on smoking and using smokeless tobacco products, as well as electronic cigarettes, as outlined in section "B" above. However, employees are still expected to fully comply with provisions of the previous policy that prohibit smoking and the use of smokeless tobacco in City buildings and City vehicles. E. Any employee who violates this policy is subject to disciplinary action as outlined in Policy 109.01 Disciplinary Action. FWPOLICY /108.03A PAGE 3 OF 3 OL1CY /ADMINISTRATIVE PROCEDURE /ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS AND ELECTRONIC REFERENCE NUMBER: CIGARETTES 108.03 F. Smoking Cessation Pro_ grams: City employees who need or desire assistance with overcoming a nicotine addiction may seek help through the City's health insurance program or Employee Assistance Program (EAP), outlined in Policy 107.10 Employee Assistance Prograln. Interested employees or supervisors may contact a representative of the Human Resources Department for assistance. G. Supervisors are responsible and accountable for communicating this policy to, and enforcing the policy upon, their employees. H. Employees are expected to report violations of this policy to their immediate supervisor or someone in the chain of command. Employees reporting such violations shall not be subjected to retaliation. FWPOLICY /108.03A z:Aresolutions \15 \use of tobacco products policy amendment.docx RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY STANDARDS OF CONDUCT POLICY FOR EMPLOYEES REGARDING USE OF TOBACCO PRODUCTS AND ELECTRONIC CIGARETTES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Policy numbered 108.03 "Use of Tobacco Products and Electronic Cigarettes" of the Personnel Policies and Procedure Manual of the City of Denton attached hereto and .incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas, and replaces former policy 108.03. SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. This resolution 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: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -829, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Voluntary Dental and Vision Benefits for the City of Denton (RFP 5853- Dental Benefits awarded to Aetna Life Insurance Company in the three (3) year estimated amount of $3,182,450 with a 9% rate cap for Year 3 and Vision Benefits awarded to Davis Vision, Inc. in the three (3) year estimated amount of $334,100). The actual cost will be determined by the number of employees and retirees electing coverage and the level of coverage selected. This is a pass through cost that is paid by the employee. RFP INFORMATION The City requested competitive proposals for Dental and Vision benefits for employees, retirees, and dependents as part of the City's comprehensive benefits package. The full cost of the premiums for these benefits are paid for by the employees and retirees who elect them. The City's Dental and Vision benefits have been provided through United Healthcare (UHC) since January 1, 2013. And while we still had two (2) one -year renewals remaining on our contract with UHC, due to a projected rate increase in 2016, and some service concerns on the dental coverage, it was determined that we would send out RFP 45853 to check the market. Requests for Proposals were sent to 170 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. All the Dental and Vision proposals were evaluated using the following criteria: 60% - Price (including multi -year rate guarantees) 30% - Probable performance under contract 10% - Compliance with specifications, quality, reliability Dental The City received nine (9) responses to the Dental portion of the RFP from the following companies: Table 1 - Proposed Dental Rates City of Denton Page 1 of 4 Printed on 9/10/2015 File #: ID 15 -829, Version: 1 Company Comparison to Current Rates United Healthcare (Incumbent) 14.43% Aetna (1.26 %) Ameritas (0.64 %) Blue Cross Blue Shield (3.0 %) Cigna (8.01%) Delta (0.27 %) Humana (2.64 %) Lincoln 2.73% United Concordia 2.94% A detailed analysis of the nine Dental (9) proposals, including the Best and Final Offer (BAFO) results, can be found in Exhibit 1. Based on our evaluation of the proposals, both staff and our benefits consultant, McGriff, Seibels, & Williams, are recommending purchasing Dental insurance from Aetna. Although Cigna had the lowest price in terms of monthly rates for our employees, Aetna's proposal still provides a 3.66% reduction in monthly rates and provides the following coverage enhancements that make Aetna's proposal the most advantageous to the City: • Aetna increased the Calendar Year Maximum from $1,500 to $1,750 so that employees receive a greater annual benefit for their premium; • Aetna is also offering an annual "rollover benefit" of $400 per year. This means that as long as an employee receives their annual preventative care evaluation (cleaning), and doesn't use the full Calendar Year Maximum, they can get an additional $400 in benefits the following year (up to $2,150); • Aetna has included oral cancer screening in their preventative benefit; and • Aetna is providing the City with a "first month premium credit" in the amount of $25,000 which provides further savings to the plan. Aetna's proposal provides for a two (2) year rate guarantee and a 9% maximum rate increase in year three (3). Vision The City received 11 responses to the Vision portion from the following companies: Table 2 - Proposed Vision Rates Company CLQpany Comparison to Current Rates United Healthcare (Incumbent) Same Aetna (2.46 %) Ameritas (2.59 %) Avesis No Rates Given Cigna (4.53 %) Davis (19.56 %) City of Denton Page 2 of 4 Printed on 9/10/2015 File M ID 15 -829, Version: 1 EyeMed (12.03 %) Humana (7.98 %) National Vision (9.83 %) Superior (National) (16.89 %) Superior (Southwest) (22.96 %) A detailed analysis of the eleven Vision proposals, including the Best and Final Offer (BAFO) results, can be found in Exhibit 2. Based on our evaluation of the proposals, both staff and our benefits consultant, McGriff, Seibels, & Williams, are recommending purchasing Vision insurance from Davis. Although Superior (Southwest) had the lowest price in terms of monthly rates for our employees, the vision provider network is much smaller than Davis' network. Between Davis' 19.56% reduction in monthly rates and the much broader provider network, Davis provides the proposal that is most advantageous to the City. RECOMMENDATION Staff recommends awarding a three (3) year contract to Aetna Life Insurance Company for Dental benefits and a three (3) year contract to Davis Vision, Inc. for Vision benefits. PRINCIPLE PLACE OF BUSINESS Aetna Life Insurance Company is headquartered in Hartford, Connecticut. However, the City's account will be managed out of the Dallas, Texas office. Davis Vision, Inc. has their headquarters in Houston, Texas. However, our account will be managed out of the Dallas, Texas office. ESTIMATED SCHEDULE OF PROJECT The new Dental and Vision contracts will be effective January 1, 2016. FISCAL INFORMATION Expenses for Dental insurance will be paid from the Health Insurance Fund account 850500.6152. Expenses for Vision insurance will be paid from the Health Insurance Fund account 850500.6154. EXHIBITS Exhibit l: Dental Comparison Spreadsheet Exhibit 2: Vision Comparison Spreadsheet Exhibit 3: Ordinance Respectfully submitted: City of Denton Page 3 of 4 Printed on 9/10/2015 File M ID 15 -829, Version: 1 Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Scott Payne at 349 -7836. 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AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF VOLUNTARY DENTAL AND VISION BENEFITS FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5853- DENTAL BENEFITS AWARDED TO AETNA LIFE INSURANCE COMPANY IN THE THREE (3) YEAR ESTIMATED AMOUNT OF $3,182,450 WITH A 9% RATE CAP FOR YEAR 3 AND VISION BENEFITS AWARDED TO DAVIS VISION, INC. IN THE THREE (3) YEAR ESTIMATED AMOUNT OF $334,100). THE ACTUAL COST WILL BE DETERMINED BY THE NUMBER OF EMPLOYEES AND RETIREES ELECTING COVERAGE AND THE LEVEL OF COVERAGE SELECTED. THIS IS A PASS THROUGH COST THAT IS PAID BY THE EMPLOYEE. WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of voluntary dental and vision benefits, 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 5853 Aetna Life Insurance Company $3,182,450 5853 Davis Vision, Inc. $ 334,100 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. EXHIBIT 3 SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5853 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY m BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -830, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance approving a sixth amended agreement - Greater Denton Arts Council, to the agreement originally entered into by and between the City of Denton, Texas and the Greater Denton Arts Council, dated October 15, 1990; authorizing the City Manager to execute the sixth amended agreement - Greater Denton Arts Council; approving the expenditure of funds therefor; and providing for an effective date. BACKGROUND The City of Denton's Public Art Policy was established to encourage the integration of public art into the daily lives of the City's citizens. One of many goals established by the policy is to promote ongoing collaboration between the City of Denton and the Greater Denton Arts Council (GDAC). Since 1981, this collaboration has included a lease agreement allowing for the GDAC's use of the Center for Visual Arts (CVA), a City owned facility, located at 400 E. Hickory St. In addition to the lease, terms of the agreement specified that City funding be provided to the GDAC to assist with utility, maintenance, and janitorial expenses. The lease agreement was renewed in 2006, and the 25 year term is set to expire on August 31, 2031. In October 1990, the City signed an agreement with the GDAC concerning the Denton Community Theatre (DCT) commonly referred to as the Campus Theatre located at 214 West Hickory Street. The agreement specified that, upon the building's renovation, the City would similarly provide funds to pay for the facility's utility and maintenance expenses. Over the years, the aforementioned agreements have been amended to adjust utility and maintenance funding levels. The most recent amended agreement was approved by the City Council on September 15, 2009. Also on September 15, 2009, the City entered into a separate agreement for the Denton Community Theatre's new rehearsal facility located at 314 East Hickory Street. A separate ordinance is on today's agenda for the agreement between DCT and the City for this rehearsal space. With the current agreement set to expire on September 30, 2015, City of Denton staff recently collaborated with GDAC representatives to craft the terms of a new amended agreement. Staff sought to maintain the simplified structure of the prior agreement while ensuring City funds are adequately covering the facilities' actual operating and maintenance expenses. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -830, Version: 1 Exhibit 2 provides a breakdown of the recommended funding levels and applicable expenses by facility. Funding for City utilities is intended to address electric, solid waste, water, wastewater, and drainage services. Beginning in fiscal year 2015 -2016, staff recommends that the amounts provided for City utilities contain an inflationary modifier that increases funding for each facility by approximately 3% each year of the agreement. Increased funding for gas utilities, janitorial, and maintenance expenses are also recommended to more closely align with the actual costs incurred by these facilities. RECOMMENDATION Staff recommends approval of an ordinance approving a sixth amended agreement with the Greater Denton Arts Council. FISCAL INFORMATION Annual funding for this agreement is budgeted in the Finance Miscellaneous division of the General Fund. EXHIBITS Exhibit 1 - Ordinance and Agreement Exhibit 2 - Annual Funding Amounts GDAC and DCT Agreements Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 2 Printed on 9/10/2015 k1C0DADIDepartmentstLega1\0mu Documents \Ordinancesl!51SixthAmended Agreement-GDAC.doc Exhibit 1 AN ORDINANCE APPROVING A SIXTH AMENDED AGREEMENT - GREATER DENTON ARTS COUNCIL, TO THE AGREEMENT ORIGINALLY ENTERED INTO BY. AND BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON ARTS COUNCIL, DATED OCTOBER 15, 1990; AUTHORIZING THE CITY MANAGER TO EXECUTE THE SIXTH AMENDED AGREEMENT - GREATER DENTON ARTS COUNCIL; APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas ( "City ") has determined that it is in the best interests of the City of Denton to continue to support the arts in the community and to provide public funds to the Greater Denton Arts Council ( "GDAC "), for the benefit of GDAC regarding the City's payment of an amount of money for GDAC's utility service, janitorial service and maintenance in consideration of the valuable cultural and public services to be furnished by the GDAC to the City; and WHEREAS, this "Sixth Amended Agreement- Greater Denton Arts Council" (hereafter the "Sixth Amended Agreement ") makes provisions for simplifying and streamlining the handling of payments made by the City for the benefit of GDAC and sets forth other terms, provisions and conditions; and WHEREAS, based upon the foregoing the City Council finds that it should approve the "Sixth Amended Agreement - Greater Denton Arts Council; " and such Sixth Amended Agreement is in the best interests of the City; NOW, THEREFORE, SECTION 1. The preamble to this ordinance is hereby incorporated herewith by reference as a part of this ordinance. SECTION 2. The City Council hereby approves the Sixth Amended Agreement- Greater Denton Arts Council, to the Agreement heretofore dated October 15, 1990; said Sixth Amended Agreement, by and between the City of Denton, Texas and the Greater Denton Arts Council is attached hereto and incorporated herewith by reference; and the City Council authorizes the City Manager to execute said Sixth Amended Agreement. SECTION 3. The City Council authorizes the expenditure of funds in the manner and amount as specified in the Sixth Amended Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. ATTEST: JENNIFER WALTERS, CITY SECRETAR] LIN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: i. PAGE 2 CHRIS WATTS, MAYOR THE STATE OF TEXAS COUNTY OF DENTON SIXTH AMENDED AGREEMENT- GREATER DENTON ARTS COUNCIL The City of Denton, Texas, a Texas municipal corporation (hereafter the "City") and the Greater Denton Arts Council, a Texas not - for - profit corporation (hereafter the "GDAC ") do hereby enter into this Sixth Amended Agreement thereafter the "Sixth Amend ment - GDAC "), and by presents: PREAMBLE A. On October 2, 1990, Ordinance No. 90 -151 was approved by the City Council (hereafter. the "Council) which authorized the Mayor of Denton to execute the "Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "Agreement ") on October 15, 1990 for a 25 -year period, terminating September 30, 2015; and B., On August 2, 1991, Ordinance No. 91 -134 was approved by the Council which authorized the City to amend the Agreement for the first time to provide for the correction of Schedule "A" regarding the units of measurement and the annual consumption of gas in the "First Amendment to Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "First Amendment "); and C. On January 21, 1997, Ordinance No. 97 -023 was approved by the Council, which authorizes the City in the "Second Amendment to Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "Second Amendment ") to agree to changes in the maximum units in Schedule "A" to reflect actual charges of the Campus Theatre; and D. On September 5, 2000, Ordinance No. 2000 -285 was approved by the Council, which authorized the City in the "Third Amendment to Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "Third Amendment ") to change the maximum units regarding Section A, relating to the level of utility service consumption by GDAC and amending Schedule "A" and requiring the City to review and reconcile the utility accounts; and E. On July 19, 2005, Ordinance No. 2005 -190 was approved by the Council and approved the "Fourth Amendment to Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "Fourth Amendment "), which agreement 1 required changes in several procedures as to the Parties as well as changes to Schedule "A", along with the City's agreement to pay on behalf of the GDAC the City drainage fee and a change in the maintenance of GDAC facilities; and F. City, as Lessor and the GDAC, as Lessee entered into a "Lease Agreement/CVA" on September 26, 2006 (hereafter the "Lease Agreement") that provided for an extension of the term of the City's twenty-five year lease originally entered into on September 1, 1981, to GDAC, by a period of an additional twenty-five years, until September 1, 2031, pertaining to the Visual Arts Center of Denton, which real property is owned by the City, such Lease Agreement commencing on September 1, 2006, for the rental of $1.00 per year; said Lease Agreement also contained express provisions for janitorial services and utility costs; and G. Both the City and GDAC desire to simplify and streamline, to the extent possible, the handling of all of the GDAC's utility bills at the Campus Theatre (hereafter the "Campus") and CVA, and the payment provisions for maintenance and janitorial services regarding the timing and method of City's payments; and H. City staff has received direction from Council to proceed with amending the existing agreements heretofore entered into by and between the City and GDAC regarding the Campus and CVA; and The City has proposed to provide a mutually agreed-upon annual funding amount for the Campus Theatre and CVA used by GDAC and to amend the previous Agreements to improve the administration of funds as well as to reduce City and GDAC staff time that is devoted to reconciling the GDAC utility, maintenance and janitorial accounts under the existing agreements; J. On September 15, 2009, Ordinance No. 2009-210 was approved by the Council and approved the "Fifth Amendment to Agreement Between the City of Denton, Texas and the Greater Denton Arts Council" (hereafter the "Fifth Amendment"), which agreement makes provisions for simplifying and streamlining the handling of payments made by the City for the benefit of GDAC and sets forth other terms, provisions and conditions; NOW THEREFORE, the City and GDAC for good and valuable consideration, and for the benefit of community cultural and theatrical activities in the City of Denton, Texas; the Parties do hereby AGREE to the following covenants, provisions and terms, that establish this Sixth Amendment-GDAC, to wit: 2 1. This Sixth Amendment-GDAC shall supersede all prior provisions of the five (5) previous Agreements [described in Preamble paragraphs A, B, C, D, E and J] and it shall likewise replace those covenants in the "Lease Agreement/CVA," dated September 1, 2006, referred to above in paragraphs Section 5, paragraphs 2 and 3 and Section 7, dealing with the subjects of utilities, maintenance and janitorial services. The contract provisions set forth below, shall be in lieu of and in substitution for those documents and provisions set forth in the five (5) previous Agreements and Section 5, paragraphs 2 and 3 and Section 7 in the "Lease Agreement/CVA" that are referred to in this numbered paragraph. 2. The termination date of this Sixth Amendment-GDAC is agreed to be September 30, 2020 as stated in the original Campus Theatre Agreement dated October 15, 1990; and August 31, 2031 as stated in the Center for the Visual Arts Lease Agreement dated September 1, 2006, unless earlier terminated as provided for herein. 3. The Parties agree and understand that if the City is unable or not willing to appropriate funds for subsequent fiscal years, in order to continue the funding provided for in this Sixth Amendment-GDAC, the City may terminate this Sixth Amendmen't-GDAC at the end of the then current fiscal year and it shall not be obligated to make further payments under this Sixth Amendment-GDAC. The first annual period regarding this Sixth Amendment-GDAC shall commence on October 1, 2015 and continue through September 30, 2016. The second annual period shall commence on October 1, 2016 and continue through September 30, 2017. The third and successive annual periods shall be in each succeeding year thereafter. 4. This Sixth Amendment-GDAC is intended to condense the City's prior separate agreements with GDAC governing the Campus and the Center for Visual Arts ("CVA") into this one agreement. The GDAC agrees to deliver to the City, Director of Finance, its Financial Statements and its Independent Auditor's Report for each Fiscal Year of GDAC promptly when received from its Auditor, at the close of the GDAC fiscal year. 5. The City shall provide a mutually agreed-upon annual funding amount commencing on October 1, 2015. The annual funding amount for City utilities, as detailed in Exhibit A, will be held by the City and drawn down by City staff and used by City staff to pay GDACs City-provided utilities, such as drainage, electric, solid waste, 3 water, and wastewater utilities for the Campus Theatre and the Center for Visual Arts. 6. The City and GDAC agree that the additional sum of $20,000 is an appropriate amount to be spent annually on GDAC's and the Campus Theatre's janitorial and maintenance services for its properties. This $20,000 amount is in addition to the annual amounts provided for utilities as set forth in paragraph 5. The $20,000 for maintenance and janitorial expenses will be paid to the GDAC by the City on October 1 of the fiscal year, beginning October 1, 2015. GDAC shall then be liable for paying all of its janitorial and maintenance expenses. 7. The City and GDAC agree that the additional sum of $4,300 shall be paid by the City to GDAC in one lump-sum by October 1 of the fiscal year, for the entire annual funding amount. This amount includes $4,300 for GDAC's gas utilities regarding the Campus Theatre, which are to be paid by GDAC to the vendor, ATMOS ENERGY. The $4,300 paid annually to GDAC for these stated gas utilities is in addition to the amounts described above in paragraphs 5 and 6. 8. The City shall receive and timely pay each utility bill listed in paragraph 5 above, when it receives same directly from the Customer Service Department of the City. The utility bills shall be sent directly to the City of Denton, Director of Finance, 215 East McKinney Street, Denton, Texas 76201. GDAC will be sent an informational "DO NOT PAY" bill so that it can maintain accurate balances of its annual account with the City. The City shall pay only the annual amount, as detailed in Exhibit A, for the Campus Theatre and the CVA for the listed utilities set out in paragraph 5 hereinabove. Provided however, once the annual amount for the Campus Theatre and CVA is exhausted for the Fiscal Year, then the City shall cease to pay the utility bills for the entity or entities exceeding the city utility payment amount established in this paragraph, for that entity; then said City-provided utility bills for that entity or entities shall be the sole responsibility of and shall be paid timely by GDAC. 9. If there are annual budgeted funds in the GDAC utility account provided for in numbered paragraph 5 above, that prove to be in excess of the total utility bills received for a Fiscal Year, then at the close of that Fiscal Year, the undistributed funded amount remaining in GDAC's established accounts, shall be credited by the City to GDAC, or distributed to GDAC, at GDAC's option, for the following fiscal year, by written election delivered to the City of Denton, Director of Finance, within thirty (30) days after the close of that Fiscal Year. 4 10. There will no longer be any requirements set for maximum annual usage (i.e. kilowatt hours, gallons of water, etc.) regarding this Agreement. There are no other utility services covered by this agreement other than for drainage, electric, gas, solid waste, water and wastewater utilities. The City does not furnish gas utilities, but has agreed to a utility allocation as described in Paragraph 7 above. 11. The annual funding amount for City-provided utilities, established by the City as set forth in Exhibit A, may be re-considered by the City Council provided that the total utility rates established by the City for those annual utilities provided by the City of Denton, Texas (exclusive of gas utilities) have increased in an amount of greater than 3% for the preceding Fiscal Year. 12. The annual funding accounts established by the City in paragraph numbers 5, 6 and 7 above, may be re-considered by the City Council provided that the GDAC either sells, assigns or otherwise disposes of a GDAC location to another entity, or leases a GDAC location to another entity, or a location of GDAC is no longer used for the cultural and theatrical purposes that are identified in previous documents entered into by and between the GDAC and the City. 13. GDAC is strongly encouraged to implement energy savings plans, and may fully utilize Denton Municipal Utilities community services, such as the Green-Sense Program, Energy Audits, and other resources in order to economize and more efficiently regulate its utility use. 14. The City may enter the Campus Theatre and Center for Visual Arts facilities at any time City staff provides advance notice to the designated representative at GDAC. 15. All of the covenants, provisions and terms contained within the original Agreement regarding the Campus Theatre, dated October 2, 1990, which are set forth in Articles IV., V., VI., VII. and VIII. therein are incorporated by reference herein; and the Lease Agreement for the Center for Visual Arts, dated September 1, 2006, shall survive and shall be become a part of this "Sixth Amendment-GDAC" by and between the City of Denton, Texas and the Greater Denton Arts Council. SIGNED this the — day of .2015. 0 "CITY" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation 0 ATTESTED: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ATTEST: A- APPROVED AS TO LEGAL FORM: By: Its Attorney GEORGE C. CAMPBELL, City Manager "GDAC" GREATER DENTON ARTS COUNCIL A Texas Not-For-Profit Corporation C& By, Its 11 EXHIBIT A GDAC Annual Fundim Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services 2015-2016 77,250 4,300 20,000 2016-2017 79,500 4,300 20,000 2017-2018 82,000 4,300 20,000 2018-2019 84,500 4,300 20,000 2019-2020 87,000 4,300 20,000 EXHIBIT 2 GDAC and DCT Annual Fundin Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services Current 75,000 3,000 15,000 Agreement* 2015-2016 77,250 4,300 20,000 2016-2017 79,500 4,300 20,000 2017-2018 82,000 4,300 20,000 2018-2019 84,500 4,300 20,000 2019-2020 87,000 4,300 20,000 DCT Rehearsal Space Annual Funding Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services Current 7,000 0 1,000 Agreement* 2015-2016 7,200 0 3,000 2016-2017 7,450 0 3,000 2017-2018 7,650 0 3,000 2018-2019 7,900 0 3,000 2019-2020 8,100 0 3,000 * Funding for the current agreement was provided annually beginning FY 2009 -2010 and concluding FY 2014 -2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -832, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider adoption of an ordinance approving an agreement - Denton Community Theatre by and between the City of Denton, Texas and the Denton Community Theatre, a Texas non - profit corporation; authorizing the City Manager to execute the agreement - Denton Community Theatre; approving the expenditure of funds therefor; and providing for an effective date. BACKGROUND The City of Denton's Public Art Policy was established to encourage the integration of public art into the daily lives of the City's citizens. One of many goals established by the policy is to promote ongoing collaboration between the City of Denton and the Greater Denton Arts Council (GDAC). Since 1981, this collaboration has included a lease agreement allowing for the GDAC's use of the Center for Visual Arts (CVA), a City owned facility, located at 400 E. Hickory St. In addition to the lease, terms of the agreement specified that City funding be provided to the GDAC to assist with utility, maintenance, and janitorial expenses. The lease agreement was renewed in 2006, and the 25 year term is set to expire on August 31, 2031. In October 1990, the City signed an agreement with the GDAC concerning the Denton Community Theatre (DCT) commonly referred to as the Campus Theatre located at 214 West Hickory Street. The agreement specified that, upon the building's renovation, the City would similarly provide funds to pay for the facility's utility and maintenance expenses. Over the years, the aforementioned agreements have been amended to adjust utility and maintenance funding levels. The most recent amended agreement was approved by the City Council on September 15, 2009. A separate ordinance is on today's agenda for the agreement between GDAC and the City for the Center for Visual Arts and the Campus Theatre. Also on September 15, 2009, the City entered into a separate agreement for the Denton Community Theatre's new rehearsal facility located at 314 East Hickory Street. With the current agreement set to expire on September 30, 2015, City of Denton staff recently collaborated with DCT representatives to craft the terms of a new agreement. Staff sought to maintain the simplified structure of the prior agreement while ensuring City funds are adequately covering the facilities' actual operating and maintenance expenses. This ordinance will approve an agreement for an additional five year term. Exhibit 2 provides a breakdown of the recommended funding levels and applicable expenses by facility. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -832, Version: 1 Funding for City utilities is intended to address electric, solid waste, water, wastewater, and drainage services. Beginning in fiscal year 2015 -2016, staff recommends that the amounts provided for City utilities contain an inflationary modifier that increases funding for each facility by approximately 3% each year of the agreement. Increased funding for gas utilities, janitorial, and maintenance expenses are also recommended to more closely align with the actual costs incurred by these facilities. RECOMMENDATION Staff recommends approval of an ordinance approving an agreement with the Denton Community Theatre. FISCAL INFORMATION Annual funding for this agreement is budgeted in the Finance Miscellaneous division of the General Fund. EXHIBITS Exhibit I - Ordinance and Agreement Exhibit 2 - Annual Funding Amounts GDAC and DCT Agreements Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 2 Printed on 9/10/2015 11CODAD\DepartrnentskLegal.\Our Documents\0rdinancesX1 51Denton Community Theatre.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE APPROVING AN AGREEMENT-DENTON COMMUNITY THEATRE BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON COMMUNITY THEATRE, A TEXAS NON-PROFIT CORPORATION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT-DENTON COMMUNITY THEATRE; APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas ("City") has determined that it is in the best interests of the City of Denton to continue to support the arts in the community and specifically, to provide public funds for utility and janitorial services to the Denton Community Theatre ("DCT"), to be used for its new leased rehearsal facility, in consideration of the valuable cultural and public services to be furnished by the DCT to the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the "Agreement-Denton Community Theatre," attached hereto and incorporated herewith by reference, entered into by and between the City of Denton, Texas and the Denton Community Theatre ( hereafter the "Agreement"), and authorizes the City Manager to execute said Agreement. SECTION 2. The City Council authorizes the expenditure of funds in the manner and amount as specified in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. I PASSED AND APPROVED this the day of 2015, ATTEST: JENNIFER WALTERS, CITY SECRETARY 0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By:.. ,, THE STATE OF TEXAS COUNTY OF DENTON AGREEMENT-DENTON COMMUNITY THEATRE The City of Denton, Texas, a Texas municipal corporation (hereafter the "City") and the Denton Community Theatre, a Texas not-for-profit corporation (hereafter the "DCT") do hereby enter into this Agreement-Denton Community Theatre (hereafter the "Agreement-DCT"), and by presents: A. Both the City and DCT desire to simplify and streamline the handling of payments regarding the DCT's utility bills and the payment provisions for janitorial services regarding the timing and method of City's payments; and B. City staff has received direction from Council to proceed with proposing this Agreement to provide DCT with an amount of funding for utilities and janitorial services for the rehearsal facility to be utilized by Denton Community Theatre, being the approximate 3800 square foot space, which DCT has leased from the Denton Record Chronicle; and C. The City has proposed to provide a mutually agreed-upon fixed annual funding amount for these leased rehearsal facilities used by DCT that are leased from the Denton Record Chronicle; and to improve the administration of funds, as well as to reduce City and DCT staff time that is devoted to reconciling the DCT utility and janitorial accounts; NOW THEREFORE, the City and DCT for good and valuable consideration, and for the benefit of community cultural and theatrical activities in the City of Denton, Texas; the City and DCT do hereby AGREE to the following covenants, provisions and terms, that establish this Agreement-DCT, to wit: 1. The termination date of this Agreement is agreed to be September 30, 2020, unless earlier terminated as provided for herein. 2. City and DCT agree and understand that if the City is unable or not willing to appropriate funds for subsequent fiscal years, in order to continue the funding provided for, that the City may terminate this Agreement-DCT at the end of the then current Fiscal Year and it shall not be obligated to make further payments 1 under this Agreement-DCT. The first annual period regarding this Agreement shall commence on October 1, 2015 and continue through September 30, 2016. The second annual period shall commence on October 1, 2016 and continue through September 30, 2017. The third and successive annual periods shall be in each succeeding year thereafter. 3. The DCT agrees to deliver to the City, Director of Finance, its Financial Statements and its Independent Auditor's Report for each Fiscal Year of DCT, during the pendency of this Agreement-DCT, promptly when received from its Auditor, at the close of the DCT Fiscal Year. 1. The City shall provide a mutually agreed-upon annual funding amount commencing on October 1, 2015 for DOT's rehearsal space at the Denton Record Chronicle. The annual funding amount for City utilities, as detailed in Exhibit A, will be paid annually with the first such annual payment being due and beginning on October 1, 2015. DCT shall timely and directly pay for all of its utilities for said rehearsal space directly to the providers of same and/or to their Landlord, as applicable. DCT may manage whether or not it desires separate meters for utility service. The City does not object to same. 2. The City and DCT agree that the additional sum of $3,000 is an appropriate amount to be spent annually on DTC's janitorial services for its rehearsal space at the Denton Record Chronicle. This $3,000 amount is in addition to the annual amount set forth in Paragraph 4 herein. The $3,000 for janitorial expenses will be paid to the DCT by the City on October I of each Fiscal Year, beginning October 1, 2015. DCT shall then be liable for paying all of its janitorial expenses for the Fiscal Year. 6. There are no requirements set for maximum annual usage (i.e. kilowatt hours, gallons of water, etc.) regarding this Agreement. There are no other utility services covered by this agreement other than for drainage, electric, gas, solid waste, water and wastewater utilities. 7. The fixed annual funding accounts established by the City in Paragraph numbers 4 and 5 above, may be re-considered by the City Council provided that the DCT either sells, assigns or otherwise disposes of the DCT leased location to another entity, or sub-leases the DCT leased location to another entity, or the DCT leased location is no longer used for the cultural and theatrical purposes that benefit the residents of the City of Denton, Texas. 01 8. DCT is strongly encouraged to implement energy savings plans, and may fully utilize Denton Municipal Utilities community services, such as the Green-Sense Program, Energy Audits, and other resources in order to economize and more efficiently regulate its utility use. 9. The City may enter the DCT rehearsal facilities at any time that City staff provides advance notice to the designated representative of DCT. SIGNED this the — day of 2015. ATTESTED: JENNIFER WALTERS, CITY SECRETARY 0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY "CITY" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation By: GEORGE C. CAMPBELL, City Manager 3 ATTEST: By: APPROVED AS TO LEGAL FORM: A-2 Its Attorney "DCT" DENTON COMMUNITY THEATRE, INC. A Texas Not-For-Profit Corporation Its 4 EXHIBIT A DCT Rehearsal Space Annual Funding Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services 2015-2016 7,200 0 3,000 2016-2017 7,450 0 3,000 2017-2018 7,650 0 3,000 2018-2019 7,900 0 3,000 2019-2020 8,100 0 3,000 EXHIBIT 2 GDAC and DCT Annual Fundin Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services Current 75,000 3,000 15,000 Agreement* 2015-2016 77,250 4,300 20,000 2016-2017 79,500 4,300 20,000 2017-2018 82,000 4,300 20,000 2018-2019 84,500 4,300 20,000 2019-2020 87,000 4,300 20,000 DCT Rehearsal Space Annual Funding Amounts Fiscal Year City Provided Utilities Gas Utilities Janitorial and Maintenance Services Current 7,000 0 1,000 Agreement* 2015-2016 7,200 0 3,000 2016-2017 7,450 0 3,000 2017-2018 7,650 0 3,000 2018-2019 7,900 0 3,000 2019-2020 8,100 0 3,000 * Funding for the current agreement was provided annually beginning FY 2009 -2010 and concluding FY 2014 -2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -837, Version: 1 DEPARTMENT: CM/ ACM: Water Utilities Howard Martin Legislation Text Agenda Information Sheet Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a sewer main cost participation agreement between the City of Denton, Texas and the Carnegie Holding Company, LLC., D /B /A CHC Development, LLC. for the City's participation in the oversizing of sewer mains; and in accordance with the terms and conditions of this ordinance; authorizing the expenditure of funds therefor; and providing an effective date (not to exceed $33,304) BACKGROUND CHC Development (CHC) is the developer of the Country Lakes West Phase 1 project. According to the Wastewater Master Plan, the sewer line along Meandering Creek Way in the proposed development needs to be 18 -inch diameter to accommodate wastewater flows from the off -site drainage area that will travel through the Country Lakes West Phase 1 development. As such, staff has worked with CHC to oversize the 1200 feet of sewer line along Meandering Creek Way to 18 -inch diameter pipe (Exhibit 1). This oversize to continue the existing 18" main westward through the Country Lakes West Phase 1 development will facilitate future wastewater service to a larger sewershed that extends to, and beyond IH -35W. Per 35.21.9.1 of the Denton Development Code, "`oversized mains" are defined as... sewer mains over ten (10) inches which are required by the City for future system expansion and are not specifically required to provide service to the proposed development." Thus the oversize participation amount is calculated as the difference between an 18" main and a 10" main. CHC presented the City with their tabulated calculation of the Oversize Participation Amount (see Exhibit 2). The unit prices that CHC used for this calculation were those included in the Contractor's (Interstate Pipeline Utility Construction) 3 -Way Contract for the project. Staff has reviewed the entire tabulation and determined that 1) the quantities are correct, and 2) the unit prices are not reasonable, based on similar work on other recent projects. Thus, Staff takes no exceptions to the oversize participation cost as prepared by CHC. Staff has prepared a corresponding Sewer Main Cost Participation Agreement (see Exhibit 3) OPTIONS N/A City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -837, Version: 1 RECOMMENDATION Staff recommends approval of the Sewer Main Cost Participation Reimbursement Agreement as prepared and submitted. ESTIMATED SCHEDULE OF PROJECT Construction of the sewer main is complete. PRIOR ACTION/REVIEW (Council, Boards, Commissions) August 24, 2015: PUB recommended the oversize cost participation agreement for approval (Vote 7 -0) FISCAL INFORMATION The City's financial obligation under this item is $33,304.00. There is $200,000 budgeted for oversize participation in the FY 2015 budget (see Exhibit 4). BID INFORMATION N/A EXHIBITS 1. Location Map 2. "Oversized Sanitary Sewer System Difference" table, received from CHC. 3. Oversize Participation Agreement & Ordinance 4. FY2015 CIP Detail Sheet. Respectfully submitted: P. S. Arora, P.E. Assistant Director of Wastewater Utilities Prepared by: James B. Jenks, P.E. Senior Engineer, Engineering Development Review City of Denton Page 2 of 2 Printed on 9/10/2015 COUNTRY LAKES WEST PHASE I OVERSIZED SANITARY SEWER SYSTEM DIFFERENCE PROJECT: COUNTRY LAKES WEST PHASE 1 A. SANITARY SEWER SYSTEM W/ 10" PIPE DESCRIPTION UNIT APPROX. QUANTITY UNIT PRICE TOTAL 10" SDR -35 PIPE (0' -10' DEEP) LF 1,208 22.00 26,576.00 4' DIAMETER MANHOLE EA 6 2,035.00 12,210.00 SUB - TOTAL SANITARY SEWER SYSTEM $ 38,786.00 B. SANITARY SEWER SYSTEM W/ 18" OVERSIZED PIPE DESCRIPTION UNIT APPROX. QUANTITY UNIT PRICE TOTAL 18" SDR -35 PIPE (0' -10' DEEP) LF 1,208 43.50 52,548.00 5' DIAMETER MANHOLE EA 6 3,257.00 19,542.00 SUB-TOT L SANITARY SEWER SYSTEM $ 72,090.00 SUMMARY A. SANITARY SEWER SYSTEM W/ 10" PIPE B. SANITARY SEWER SYSTEM W/ 18" OVERSIZED PIPE DIFFERENCE NOTES: Using unit prices from Interstate Pipeline contract 111611 I/_1 $ 38,786 $ 72,090 $ 33,304 Exhibit 2 Exhibit 2- CLW Phase 1 OPC Oversized SS.xlsx Evolving Texas Page 1 of 1 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SEWER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE CARNEGIE HOLDING COMPANY, LLC., D /B /A CHC DEVELOPMENT, LLC. FOR THE CITY'S PARTICIPATION IN THE OVERSIZING OF SEWER MAINS; AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (NOT -TO- EXCEED $33,304). WHEREAS, the City desires to participate in the cost of oversizing sewer mains to be designed, installed, and constructed by the owner of the real property, Country Lakes West, LLC, in an amount not to exceed Thirty Three Thousand Three Hundred and Four Dollars ($33,304), in accordance with the provisions of Section 35.21.9.1 of the Denton Development Code, as amended, and Texas Local Government Code §212.072; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is authorized to execute a "Sewer Main Cost Participation Agreement between the City of Denton, Texas and Carnegie Holding Company, LLC, d /b /a/ CHC Development, LLC., for the oversizing of approximately 1,200 linear feet of on -site ten -inch (10 ") to eighteen -inch (18 ") sewer mains; substantially in the form of the attached Agreement, which is incorporated herewith and made a part of this ordinance for all purposes; subject however, to Carnegie Holding Company, LLC, d /b /a CHC Development, LLC. entering into a Development Contract with the City of Denton, in accordance with Section 35.16.20.3 of the Denton Development Code, as amended, of the City of Denton, Texas. SECTION 2. The City Manager is hereby authorized to make the expenditures as set forth in the attached Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the w. I.......__"., day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY CHRIS WATTS, MAYOR EXHIBIT 3 APPROVED AS TO LEGAL FORM: ANITA 13[eJR.GESS, By. ,,, . r . THE STATE OF TEXAS § COUNTY OF DENTON § SEWER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND CARNEGIE HOLDING CO MPANY, LLC, DB /A CHC DEVELOPMENT, LLC WHEREAS, the Carnegie Holding Company, LLC, d/b /a CHC Development, LLC hereinafter referred to as "Developer ", whose business address is 608 8th Avenue, Fort Worth, Texas 76104, wishes to develop and improve certain real property named "Country Lakes West Phase I" owned of record by Country Lakes West, LLC (as shown in Exhibit I, attached hereto and incorporated herein by reference), located in the City of Denton, Texas or its extraterritorial jurisdiction, and is required to provide such real property with adequate collection capacity by designing, constructing and installing a sanitary sewer main of an inside diameter of eighteen- inches (18 "), hereinafter referred to as the "Required Facilities "; and WHEREAS, the City of Denton, Texas, a Municipal Corporation with its offices located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as the "City, 11 in accordance with Section 35.21.9 of the Denton Development Code, as amended, and its ordinances, wishes to participate in the cost of the construction and installation of said sanitary sewer main to expand its utility system and insure adequate utility service to other customers; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein the Developer and the City AGREE as follows: 1. Developer shall design, install, and construct approximately 1,208 linear feet of eighteen- inches of sewer main of which 8- inches of said sewer main shall be eligible for oversize cost participation. The 1,208 linear feet of sewer main, together with 6 new manholes, and all necessary appurtenances thereto, hereafter referred to as the "Oversized Facilities" are as shown on Exhibit I, attached hereto and incorporated herein by reference. 2. As required by Section 35.21.9 of the Denton Development Code, Developer will enter into a Cost Participation Agreement with the City prior to beginning of construction of the Oversized Facilities. This Agreement is subject to and governed by any other applicable ordinances of the City of Denton, Texas. 3. Prior to beginning of construction of the Oversized Facilities, Developer shall obtain, at Developer's sole cost and expense, all necessary permits, licenses and easements. The easements, deeds, and plats therefor obtained by Developer shall be reviewed and approved as to form and substance by City prior to the beginning of construction. If Developer is unable to acquire needed easements, Developer shall provide City with any requested documentation of efforts to obtain such easements, including evidence of negotiations and reasonable offers made to the affected property owners. Any easements for the Oversized Facilities obtained by the Developer shall be assigned to City, if not taken in City's name, prior to acceptance of the Oversized Facilities, and Developer warrants clear title to such easements and will defend City against any adverse claim made against such title. 4. City's share in the cost of the Oversized Facilities is based upon the difference in the cost of installing Required Facilities, as determined by City, and the cost of the Oversized Facilities, as determined by City, shall be in an amount not -to- exceed thirty-three thousand three hundred and four dollars ($33,304.00). City may elect one of the following methods to determine City's share of the cost: a) Developer shall prepare plans and specifications and furnish them to City. City shall competitively bid the required line and the Oversized Facilities in accordance with Chapter 252 of the Texas Local Government Code. The difference in the bids shall be used to determine the City's share, subject to City's maximum participation in cost as specified in this Agreement; or b) Developer shall prepare plans and specifications and take bids on the required line and the Oversized Facilities. City shall pay Developer the least amount of the following: (1) The difference in the bids for the required line and the Oversized Facilities; or (2) Participation by the City at a level not to exceed One Hundred percent (100 %) of the total cost for any oversizing of improvements required by the City, including, but not limited to increased capacity of improvements to anticipate other future development in the area, all as provided for in §212.072(b) of the Texas Local Government Code, as amended: or (3) $33,304.00, the maximum participation cost allowed herein. The City shall not, in any case, be liable for any additional cost because of delays in beginning, continuing, or completing construction; changes in the price or cost of materials, supplies, or labor; unforeseen or unanticipated cost because of topography, soil, subsurface, or other site conditions; differences in the calculated and actual per linear feet of pipe or materials needed for the Oversized Facilities; Developer's decision as to the contractors or subcontractors used to perform the work; or any other reason or cause, specified or unspecified, relating to the construction of the Oversized Facilities. 5. The City will make monthly payments for its share of the Oversized Facilities. The Developer shall submit monthly pay requests on forms provided by the City. The Developer's engineer shall verify that each pay request is correct. Each pay request, along with the engineer's verification, shall be submitted to the Engineering & Transportation Department of the City. The City will retain 10% of the total dollar amount until the project is accepted. Payment by the City to the Developer will be made within thirty (30) days of receipt of the pay estimate and the engineer's verification. 6. To determine the actual cost of the Oversized Facilities, City shall have the right to inspect any and all records of Developer, his agents, employees, contractors or subcontractors, and shall have the right to require Developer to submit any necessary information, documents, invoices, receipts or other records to verify the actual cost of the Oversized Facilities. 2 7. All notices, payments or communications to be given or made pursuant to this Agreement by the parties hereto shall be sent to Developer at the business address given above and to the Assistant City Manager for Utilities for City at the address given above. 8. Developer shall indemnify and hold City harmless from any and all claims, damages, loss or liability of any kind whatsoever, by reason of injury to property or person occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, invitees, contractors or other persons with regard to the performance of this Agreement; and Developer shall, at its own cost and expense, defend and protect City against any and all such claims and demands. 9. If Developer does not begin substantial construction of the Oversized Facilities within twelve (12) months of the effective date of execution of this Agreement, this Agreement shall terminate. 10. This instrument embodies the entire agreement of the parties hereto and there are no promises, terms, conditions or obligations other than those contained or incorporated herein. This Agreement shall supersede all previous communications, representations or agreements, whether verbal or written, between the parties hereto with respect to the subject matter of this Agreement. 11. This Agreement shall not be assigned by Developer without the express written consent of the City. 12. The entity that is to be paid under this Agreement is the record owner, Country Lakes West, LLC. 13. Any and all suits for any breach of this Agreement, or any other suit pertaining to or arising out of this Agreement, shall be brought in a court of competent jurisdiction in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. EXECUTED in duplicate original counterparts by the duly authorized officials and officers of the City of Denton, Texas and the Developer, on this the day of 2015. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation Lo George C. Campbell, City Manager 3 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: - ...... ... --------------- ATTEST: APPROVED AS TO LEGAL FORM: "DEVELOPER" CARNEGIE HOLDING COMPANY, LLC D/B /A CHC DEVELOPMENT 4 City of Denton 2015-2019 CIP Improvements Projects "NOPM ct Title: Oversize Wastewater Lines Description: Money allocated to pay the difference in construction cost of increasing wastewater line from the minimum required design size indicated in the subdivision regulation to a larger diameter line size needed in the future for increasing girowthi in an undeveloped area. Business Unit: 640200-Wastewater- Collection Project Type: Growth Project Scooe,, Every Year Project Category Code: 029-OVERSIZE LINES i%W-omments: Purpose Subdivision regulations dictate the minimum required wastewater line size for new development based on, projected usage of a newly platted area. During DRiC, city will review, and agrees to play additional costs to increase minimum wastewater line size to meet, future growth, EXHIBIT 4 Tuesday, Marchl 11, 2014 Page 68 of 104 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -838, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Library Bryan Langley September 15, 2015 SUBJECT Consider adoption of an ordinance regarding the Denton Public Library amending section 2 -158 of the City of Denton, Texas, Code of Ordinances; to remove outdated formats and provide uniform check out length of time to all circulating materials; repealing all ordinances in conflict therewith; providing a severability clause; providing for a penalty clause; and providing for an effective date. BACKGROUND Formats for circulating library materials change with the development of new technology, customer demand and cost. For example, Denton Public Library no longer offers VHS tapes for check out and anticipates current formats such as DVDs to be replaced by newer technology as well. In order to make governing ordinances accurate and complete, we would like to delete specific formats from ordinance language. In addition, all library items will circulate for the same length of time, 21 days or three weeks from the date of check out. This will lead to a more uniform and fair borrower experience for library customers. EXHIBITS Exhibit I- Redline markup of existing Ordinance Exhibit 2- Ordinance Respectfully submitted: Terri Gibbs Director of Libraries City of Denton Page 1 of 1 Printed on 9/10/2015 3711 OM Section 2 — 158. — Return of borrowed materials. It is unlawful for any person, including the parent or guardian of a child under the age of seventeen (17) years who shall take or borrow from the public library any item pamphlet, PeF;ed;e l papeF r etheF pFepeFty, to neglect, refuse or fail to return the property within twenty -one (21) days (feuFteeR (14` days f^, � of the date noted on the charge receipt at the time of check out. A notification will be sent to his or her address, telephone number or email address as noted on the current customer record after the item has been overdue for five (5) days. \\codad\departrnentsAega1\our documentAordinances11511ibrary code amendment ordinance. docx AN ORDINANCE AMENDING SECTION 2-158 OF THE CITY OF DENTON CODE OF ORDINANCES; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Director of Libraries has recommended certain changes to Section 2-158 of the Code of Ordinances "Return of Borrowed Materials" regarding neglect, refuse or failure to return property; and WHEREAS, the City Council has determined that these changes to Section 2-158 of the Code are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article V Library, Section 2-158 of the Code of Ordinances is hereby deleted in its entirety and replaced with as follows: ARTICLE V. LIBRARY DIVISION 1. GENERALLY Sec. 2-158. Return of borrowed materials. It is unlawful for any person, including the parent or guardian of a child under the age of seventeen (17) years who shall take or borrow from the public library any item to neglect, refuse Or fail to return the property within twenty-one (21) days of the date noted on the charge receipt at the time of check out. A notification will be sent to his or her address, telephone number or email address as noted on the current customer record after the item has been overdue for five (5) days. SECTION 2. A person violating this ordinance shall be guilty of a Class C Misdemeanor. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. All provisions of the ordinances of the City of Denton in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Denton, not in conflict with the provisions of this ordinance, shall remain in fall force and effect. Page 1 of 2 SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IM RUN I K's NOW] r I rffa, 0 04) 0,46-1 BY: z� 2015. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -839, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Basic and Supplemental Life Insurance /Accidental Death and Dismemberment, Voluntary Short Term Disability, and Group Long Term Disability Insurance for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5852 -Basic Life Insurance /Accidental Death and Dismemberment awarded to Dearborn National Life Insurance Company in the three (3) year estimated amount of $1,036,000 ($136,000 City cost and $900,000 employee optional insurance cost) and Long Term Disability awarded to Dearborn National Life Insurance Company in the three (3) year estimated amount of $856,555 ($306,555 City cost and $550,000 employee optional disability insurance cost). The actual cost will be determined by the number of employees electing coverage as well as the employee's age and salary. The coverage for Supplemental Life Insurance and Short Term Disability Insurance is voluntary and is determined by the actual voluntary employee participation. This is a pass through cost that is paid by the employee. RFP INFORMATION The City of Denton requested competitive proposals for Basic and Supplemental Life Insurance /Accidental Death and Dismemberment (AD &D), Voluntary Short Term Disability, and Group Long Term Disability benefits for employees as part of the City's comprehensive benefits package. The cost for the Basic Life /AD &D and the Group Long Term Disability are paid for by the City, while the cost for the Supplemental Life and Voluntary Short Term Disability are paid for by the employee. In each case, premiums are determined by the employee's age and salary. These benefits have been provided through The Hartford since January 1, 2011. While The Hartford has been a good partner during this time period, the last of our one -year renewals ends on December 31, 2015. Because of that, RFP 45852 was sent out to the Life and Disability market. Requests for Proposals were sent to 172 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. The City received 13 responses to the RFP from the following companies: Table 1 - Proposed Basic Life /AD &D and Long Term Disability Rates )arison to Current Rates City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -839, Version: 1 The Hartford (Incumbent) (7.52 %) Cigna (6.33 %) Dearborn (53.67 %) Lincoln Financial (17.59 %) Madison National Life Long -Term Disability Only MetLife (16.45 %) Minnesota Life Life only Mutual of Omaha (47.69 %) Reliance Standard (23.23 %) The Standard (37.11 %) United Healthcare Same as Expiring Rates NUM (22.15%) oya (1.89 %) A detailed analysis of the 13 proposals, including the Best and Final Offer (BAFO) results, can be found in Exhibit 1. All the Basic and Supplemental Life /AD &D, Voluntary Short Term Disability, and Group Long Term Disability proposals were evaluated using the following criteria: 60% - Price (including multi -year rate guarantees) 30% - Probable performance under contract 10% - Compliance with specifications, quality, reliability In evaluating the proposals, each of the respondents offered almost identical rates and benefits for both the Voluntary Supplemental Life and Voluntary Short Term Disability insurance plans (which are fully paid for by the employees). Because of this, the remainder of the evaluation focused on the combined cost and benefits for the City -paid Basic Life /AD &D and Group Long Term Disability. Based on our evaluation of the proposals, both staff and our benefits consultant, McGriff, Seibels, & Williams, are recommending purchasing Basic and Supplemental Life Insurance /AD &D, Voluntary Short Term Disability, and Group Long Term Disability Insurance from Dearborn National Life Insurance Company. Dearborn's proposal contained the lowest overall cost to the City with an estimated annual savings of $170,000, with a three (3) year rate guarantee. In addition, Dearborn was willing to increase the guarantee issue amount on the Voluntary Dependent Supplemental Life from $30,000 to $50,000. RECOMMENDATION Staff recommends awarding a three (3) year contract to Dearborn National Life Insurance Company for Basic and Supplemental Life Insurance /Accidental Death and Dismemberment in the three (3) year estimated amount of $1,036,000, Voluntary Short Term Disability, and Group Long Term Disability Insurance in the three (3) year estimated amount of $856,555. PRINCIPLE PLACE OF BUSINESS City of Denton Page 2 of 3 Printed on 9/10/2015 File #: ID 15 -839, Version: 1 Dearborn National Life Insurance Company is headquartered in Chicago, Illinois. However, the City's account will be managed out of the Richardson, Texas office. ESTIMATED SCHEDULE OF PROJECT The new Basic and Supplemental Life Insurance /Accidental Death and Dismemberment, Voluntary Short Term Disability, and Group Long Term Disability Insurance contracts will be effective January 1, 2016. FISCAL INFORMATION Expenses for Long Term Disability insurance are paid from Health Insurance account 850500.6163. Expenses for Short Term Disability insurance are paid from Health Insurance account 850500.6167. Expenses for both the Basic Life /AD &D and the Voluntary Supplemental Life are paid from Health Insurance account 850500.6716. EXHIBITS Exhibit l: BAFO Analysis and Evaluation Matrix Exhibit 2: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Scott Payne at 349 -7836. City of Denton Page 3 of 3 Printed on 9/10/2015 yC C 0 CL E 0 O cn CE FJ R. R. O R. R. d vi tix FBI WI o w E om O JR O O-S 0 o w E om O O 06 0 o w E om O O w E om O w E O C 0 CL E 0 O O cn 1.1l11 ."or o bb 1.1l11 ."or > bb 1.1l11 ."or C 0 CL E 0 O O cn O ISM W ISM WI 0. O 1.1l11 ."or EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF BASIC AND SUPPLEMENTAL LIFE INSURANCE /ACCIDENTAL DEATH AND DISMEMBERMENT, VOLUNTARY SHORT TERM DISABILITY, AND GROUP LONG TERM DISABILITY INSURANCE FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5852 -BASIC LIFE INSURANCE /ACCIDENTAL DEATH AND DISMEMBERMENT AWARDED TO DEARBORN NATIONAL LIFE INSURANCE COMPANY IN THE THREE (3) YEAR ESTIMATED AMOUNT OF $135,966 AND LONG TERM DISABILITY AWARDED TO DEARBORN NATIONAL LIFE INSURANCE COMPANY IN THE THREE (3) YEAR ESTIMATED AMOUNT OF $306,555.) THE ACTUAL COST WILL BE DETERMINED BY THE NUMBER OF EMPLOYEES ELECTING COVERAGE AS WELL AS THE EMPLOYEE'S AGE AND SALARY. THE COVERAGE FOR SUPPLEMENTAL LIFE INSURANCE AND SHORT TERM DISABILITY INSURANCE IS VOLUNTARY AND IS DETERMINED BY THE ACTUAL VOLUNTARY EMPLOYEE PARTICIPATION. THIS IS A PASS THROUGH COST THAT IS PAID BY THE EMPLOYEE. WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of basic and supplemental life insurance /accidental death and dismemberment, voluntary short term disability, and group long term disability insurance for the City f 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 5852 Dearborn National Life Insurance Company $442,521 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 EXHIBIT 2 agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5852 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 mm 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 -842, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider approval of a resolution approving the City of Denton's Strategic Plan, Key Performance Indicators, and Key Action Steps for FY 2015 -16; and providing for an effective date. In April 2011, the City Council approved the first city -wide strategic plan for the City of Denton. The strategic plan was a product of the input generated from the 2008/2009 Citizen Survey, two City Council Planning Sessions, two Leadership Retreats, and a special appointed Strategic Planning Steering Committee. Following this effort, staff created a Strategic Plan Performance Report. This report was first published in March 2012, and it is updated on a periodic basis as part of the quarterly financial report. This report is sent to the City Council in a hard copy format, and it is also published electronically on the city's website for public viewing. The purpose of the report is to provide staff, the City Council, and the general public with information regarding the city's progress in achieving targeted levels of performance related to our goals and objectives identified in the strategic plan. In September 2013, the City Council approved the FY 2013 -14 Strategic Plan for the City of Denton. While this document had many new elements, the vast majority of the goals and objectives for the plan were very similar to the original strategic plan approved in 2011. In order to develop the FY 2014 -15 Strategic Plan (Exhibit 1), the city conducted a number of public forums and discussions regarding the comprehensive plan update and the City Council participated in a two day retreat to discuss a number of issues, including potential updates to the strategic plan. At the retreat, the City Council expressed general agreement with the strategic plan revisions that were proposed by staff, but the Council requested additional information regarding the specific objectives related to each of the revised goals. Development of the FY 2015 -16 Strategic Plan began in early May. Staff reviewed the plan internally to evaluate and assess the goals, objectives and key performance indicators. Additionally, a citizen and business survey was conducted, with the results being presented to the City Council on July 21. The results of those surveys were considered during the review of the goals and objectives in the Strategic Plan. Additionally, a work session was held with the City Council to discuss revisions and updates to the Strategic Plan on June 16. As a result of the work sessions and through the internal review process, the following key changes to the Strategic Plan are proposed: ➢ Include an additional goal in KFA 4 (Safe, Liveable and Family Friendly Community) to promote City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -842, Version: 1 increased emphasis on supporting citizens through social service programs and agencies. ➢ Include additional key performance indicators for DTV (KFA 1), Police (KFA 4), Environmental Services (KFA 4), and Transportation (KFA 5). ➢ Include a new section entitled "Key Action Steps" that highlights high -level tasks that link broad policy goals with specific actions. ➢ Include an appendix that provides additional information and justification for the key performance indicators that are being measured. The proposed plan was then provided to the City Council as part of the budget work session discussion on August 6. In Exhibit 2, a resolution is provided to formally approve the FY 2015 -16 Strategic Plan. The Strategic Plan is included as an attachment to this resolution. RECOMMENDATION Staff recommends that the City Council adopt the City of Denton Strategic Plan, Key Performance Indicators (KPIs), and Key Action Steps for FY 2015 -16, which is described in the attached resolution. FYHIRITC Exhibit L FY 2014 -15 Strategic Plan Exhibit 2: Resolution with FY 2015 -16 Strategic Plan, KPIs and Key Action Steps Respectfully submitted: Bryan Langley Assistant City Manager Prepared by: Jessica Rogers Assistant to the City Manager City of Denton Page 2 of 2 Printed on 9/10/2015 Ma III uuuuu uur I wuwuwuwuwuuu nnnn�lnnnnnn I EE Q) E -0 0 9 = 0 Q) 0 0 Q) 0 -E -FE 0 C) 0 VI 0 Q) V� 0 Ln V E 0 0 LA 4-J 4-J LA V 0 NO ry) 4-J 4-J . 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WHEREAS, a strategic plan is necessary to define who we are as an organization, what we envision for the future of the City in accordance with citizen expectations , and how we plan to achieve the long-term vision; and WHEREAS, a strategic plan is the result of thorough analyses of the internal and external environment in which an organization operates; and WHEREAS, a strategic plan allows elected officials and administrators to better respond to and plan for the pressures and dynamics that may impact policy and administrative decisions; and WHEREAS, the City of Denton embarked on the development of a strategic plan to serve as a roadmap for achieving long-term goals and objectives; and Vv`HEREAS, the Strategic Plan captures the City's vision, mission, and value statements; M4 WHEREAS, key stakeholders were engaged throughout the development of the Strategic Plan, including the citizens, City Council, City management, and the Leadership Team; and WHEREAS, the City Council has discussed updating the Strategic Plan and identifying Key Performance Indicators and Key Action Steps as part of the FY 2015-16 budget process; and WHEREAS, the City Council wishes to formally approve the updated Strategic Plan, Key Performance Indicators, and Key Action Steps for FY 2015-16; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The Strategic Plan, Key Performance Indicators, and Key Action Steps attached as Exhibit "A" is hereby approved by the City Council. SECTION 2. The City Manager, or his designee, will bring forth the Strategic Plan for annual review by the City Council. SECTION 3. This Resolution 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 -843, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the North Central Texas Council of Governments ( NCTCOG) under Section 791.001 of the State of Texas Government Code, to authorize the City of Denton to participate in the NCTCOG Geographic Information Systems Planimetric Mapping Update and Contour Data; authorizing the expenditure of funds therefor; and providing an effective date (File 5590- Interlocal Agreement with the North Central Texas Council of Governments in the not -to- exceed amount of $86,091.50). FILE INFORMATION This Agreement will allow the City of Denton to obtain North Central Texas Council of Governments ( NCTCOG) 2015 planimetric and contour Geographic Information Systems (GIS) data. The data is detailed information shown to scale, and useful in a variety of projects including engineering, utility location, urban planning, land use, impervious surface calculations and GIS applications. City of Denton planners and engineers will have the ability to perform detailed measurements and determine land use and environment conditions. The planimetric data will be used to superimpose changes from the new aerial photography onto the City's existing aerial photography data to keep GIS data current, including building footprints, pavement pads, paved parking lots, paved road edges, bridges, sidewalk centerlines, sidewalk edges, stream centerlines, and stream edges. Contours will be used to capture depth in the aerial photography, including valleys, hills, and the steepness of slopes on projects. Planimetric and contour data are a one -time cost of $36,811.50 and $49,280.00 respectively for a total of $86,091.50. Section 791.001 of the Government Code requires that all Cooperative Agreements must be authorized by the governing body, regardless of the dollar amount. The only exception to this is municipally owned electric utilities -these entities have a $100,000 threshold before authorization by the governing body is required. RECOMMENDATION Technology Services recommends awarding an Interlocal Agreement with the North Central Texas Council of Governments for 2015 Planimetric and Contour Data in the amount not to exceed $86,091.50. PRINCIPAL PLACE OF BUSINESS City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -843, Version: 1 North Central Texas Council of Governments Arlington, TX ESTIMATED SCHEDULE OF PROJECT This agreement will become effective when signed and will remain in effect until September 30, 2016. FISCAL INFORMATION The services provided under this agreement will be funded from Technology Services Fund operating account 800300.6504 and capital account 840062744.1350.30100. A Requisition will be entered at the beginning of the 2015 -2016 fiscal year. EXHIBIT Exhibit l: Ordinance with Interlocal Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Melissa Kraft at 349 -7823. City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT WITH THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS ( NCTCOG) UNDER SECTION 791.001 OF THE TEXAS GOVERNMENT CODE, TO AUTHORIZE THE CITY OF DENTON TO PARTICIPATE IN THE NCTCOG GEOGRAPHIC INFORMATION SYSTEMS PLANIMETRIC MAPPING UPDATE AND CONTOUR DATA; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5590 - INTERLOCAL AGREEMENT WITH THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS IN THE NOT -TO- EXCEED AMOUNT OF $86,091.50). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute the Interlocal Agreement with the North Central Texas Council of Governments under Section 791.001 of the Texas Government Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement "). SECTION 2. The City Manager or his designee is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. 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 5590 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. 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 1 North Central Texas Council of Governments INTERLOCAL AGREEMENT BETWEEN THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS AND CITY OF DENTON WHEREAS, the North Central Texas Council of Governments ( NCTCOG) has an interest in assisting local governments in providing information for planning, engineering, public safety, and municipal management; WHEREAS, the CITY OF DENTON (Entity), wishes to have its map -based information system include the 2015 digital 2D Planimetric and 2' Contour data and has determined that the creation of this resource provides information for a multitude of uses throughout the Entity and thus serves a valid public purpose; WHEREAS, the Entity requires this information to accomplish this purpose and has determined that NCTCOG can fulfill this need, and NCTCOG is willing to reciprocate; and WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code; WHEREAS, NCTCOG and Entity are local governments as that term is defined in Section 791.003(4) of the Texas Government Code; WHEREAS, Section 791.025 of the Texas Government Code authorizes local governments to agree with another local government to purchase goods and services; WHEREAS, a local government that purchases goods and services under Section 791.025 of the Texas Government Code satisfies the requirement of the local government to seek competitive bids for the purchase of goods and services; WHEREAS, NCTCOG and Entity, acting by and through their respective governing bodies, adopt the foregoing premises as findings of said governing bodies; and NOW THEREFORE, the parties, Entity and NCTCOG, agree to the following terms and conditions regarding the creation of digital planimetrics and contours. LICENSE AGREEMENT The personnel specified in Appendix A will serve as points of contact for their respective organizations. The following provisions are a license agreement between NCTCOG and the Entity with respect to data products that are identified in section II. NCTCOG is the owner of and has the right to grant a license to use the said data products free of all liens, claims, EXHIBIT 1 encumbrances, and other restrictions and without otherwise violating any rights of any third party, including any patent, copyright, trade secret, or other proprietary rights. The NCTCOG data product may be distributed to the Entity on CD -ROM, DVD, or portable hard drive. The Entity will need to install and operate the NCTCOG data product on properly configured and compatible computer equipment running third party system and application software supplied by the Entity. The Entity will also need to insure that any required data not supplied by NCTCOG is in proper format and no other software or equipment having an adverse impact on the NCTCOG product is present. A. Licensed Operating Environment (1) Operating Equipment. In exchange for monetary consideration listed in section III, the Entity will be granted an exclusive operation license to install, store, load, execute, and display (collectively, "Use ") the NCTCOG data product on as many local area networks and /or end -user workstations as the Entity reasonably needs in support of its own operation (the "Licensed Operating Environment "). Any software components of the NCTCOG data product are provided in machine - readable executable format only. (2) Authorized Users. Unless otherwise agreed in writing, the NCTCOG data product will be used by Entity officials, officers, employees, and authorized contractors only ( "Authorized Users "). A contractor shall be deemed authorized to Use the data products by the Entity or NCTCOG if such Use is incidental to a larger relationship between the contractor and the Entity, and is used for purposes no greater than reasonably needed to achieve the objectives of an actual project undertaken in connection with that relationship. The contractor must agree in writing to be bound by the provisions of this Agreement. B. Permitted Uses (1) Use of NCTCOG Products. The Entity's Authorized Users may Use the NCTCOG data product in the Licensed Operating Environment for any use that furthers the Entity's internal operations or in furtherance of the Entity's mission. (2) Use of Generated Output or Other Data. Except as stated, the Entity will own all original works of authorship it may independently create. Digital output from the Entity's Use of the NCTCOG Data Product may be resized as desired and printed on black and white, color printers, or map plotters. Such printed hardcopies may be distributed to the Entity's officers, employees, citizens, contractors, or other persons in the regular course of business for their internal use or in connection with an actual transaction. Such printed output may be further copied, photographed, or reproduced digitally on the Internet. The Entity may charge a fee for such hardcopy printouts that exceed the actual direct cost of production. Without the prior written consent of NCTCOG, the Entity may not otherwise provide copied, digitized, reproduced, transmitted or disseminated, in whole or in part, any of the original digital data product in any form. II. OBLIGATIONS Upon delivery of the products, NCTCOG shall invoice the Entity for the stipulated amounts listed below. 7/24/2015 EXHIBIT 1 Coverage Area: CITY OF DENTON Square miles= 116.4 Plantrnetric Feature Updates or New Cost Planimetric Bundle (Buildings, Parking Lots, Paved Road Edges, Bridges, Sidewalk Edges) Updates $24,007.5 Pavement Pads Updates $3,841.2 Sidewalk Centerline Updates $3,841.2 Stream Centerline Updates $1,280.4 Stream Edges Updates $3,841.2 Planimetrics Total $36,811.50 Dther Re oteSerising Products 2' Contours $49,280.0 Total $86,091.5 You have agreed to the payment terms listed below and have secured the total amount with purchase order (PO) number (Please enter a PO number if blank. If you have not yet secured a PO, please enter 9999). Invoice Date Fiscal Year or After Delivery Payment Years Not Specified If a payment term has not been specified, please circle one of the following: FY 2015 FY 2015 -16 FY 2016 If your payment is spread across two fiscal years you will be invoiced 50% of the total amount each year. Upon receipt of the first invoice, the Entity had thirty (30) days to review the products and pay said invoice or the remaining amount owed to the North Central Texas Council of Governments (NCTCOG). 7/24/2015 EXHIBIT 1 III. TERMINATION The parties agree that the Entity may terminate this Agreement by providing thirty (30) days written notice to NCTCOG. Such notice shall be given to NCTCOG at the address set forth under its signature below. In the event of such termination, NCTCOG shall reimburse to the Entity pro - ratable portion of the contracted amount for services rendered. The Entity would also reimburse NCTCOG for staff time billed to the project up to termination at a rate of $95.00 /hour. IV. AFFIDAVIT OF PROHIBITED INTEREST NCTCOG acknowledges and represents it is aware of the laws, City Charter, and City Code of Conduct regarding prohibited interests and that the existence of a prohibited interest at any time will render this Agreement null and void. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS r r Mike Eastland Date Executive Director 616 Six Flags Drive, Suite 200 Arlington, Texas 76011 City of Denton Signature Name: Title: Street Address: City, State, Zip: 7/24/2015 Date APPROVED AS TO FORM: CITY ATTORNEY EXHIBIT 1 APPENDIX A NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS 7/24/2015 MAIN CONTACT ADDITIONAL CONTACT Name: Shelley Broyles David Raybuck Title: GIS Project Coordinator Chief Technology Officer Department Research and Information Services Research and Information Services Organization: NCTCOG NCTCOG Street Address: 616 Six Flags Drive, Suite 200 616 Six Flags Drive, Suite 200 City, State, Zip Arlington, Texas 76011 Arlington, Texas 76011 Phone /Fax: (817) 695 -9156 (817) 640 -4428 (817) 608 -2357 (817) 640 -4428 E -mail: sbroyles @nctcog.org draybuck @nctcog.org 7/24/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -844, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the North Central Texas Council of Governments ( NCTCOG) under Section 791.001 of the Texas Government Code, to authorize the City of Denton to obtain Digital Orthophotography data and LiDAR and contour data from the NCTCOG Geographic Information System; authorizing the expenditure of funds therefor; and providing an effective date (File 5930- Interlocal Agreement with the North Central Texas Council of Governments in the not -to- exceed amount of $57,856.50). FILE INFORMATION This Agreement will allow the City of Denton to obtain North Central Texas Council of Governments ( NCTCOG) 2015 aerials in six inch digital format. The aerial data is detailed information shown to scale, and useful in a variety of projects including engineering, utility location, urban planning, land use, impervious surface calculations and GIS applications. City of Denton planners and engineers will have the ability to perform detailed measurements and determine land use and environment conditions. Aerial data is collected every two years by NCTCOG and is dependent on other entity participation to determine charges. In addition, NCTCOG allows entities to split the cost over two fiscal years for easy budgeting. The City of Denton has participated in this program since 2001. Section 791.001 of the Texas Government Code requires that all Cooperative Agreements must be authorized by the governing body, regardless of the dollar amount. The only exception to this is municipally owned electric utilities -these entities have a $100,000 threshold before authorization by the governing body is required. RECOMMENDATION Technology Services recommends approving an Interlocal Agreement with the North Central Texas Council of Governments for 2015 Digital Orthophotography data and LiDAR in the amount not to exceed $57,856.50. PRINCIPAL PLACE OF BUSINESS North Central Texas Council of Governments Arlington, TX City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -844, Version: 1 ESTIMATED SCHEDULE OF PROJECT This agreement will become effective when signed and will remain in effect until September 30, 2016. FISCAL INFORMATION The services provided under this agreement will be funded from Technology Services Fund operating account 800300.6504 and capital account 840062744.1350.30100. A Requisition will be entered at the beginning of the 2015 -2016 fiscal year. EXHIBIT Exhibit l: Ordinance with Interlocal Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Melissa Kraft at 349 -7823. City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT WITH THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS ( NCTCOG) UNDER SECTION 791.001 OF THE TEXAS GOVERNMENT CODE, TO AUTHORIZE THE CITY OF DENTON TO OBTAIN DIGITAL ORTHOPHOTOGRAPHY DATA AND LIDAR AND CONTOUR DATA FROM THE NCTCOG GEOGRAPHIC INFORMATION SYSTEM; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5930 - INTERLOCAL AGREEMENT WITH THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS IN THE NOT -TO- EXCEED AMOUNT OF $57,856.50). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute the Interlocal Agreement with the North Central Texas Council of Governments under Section 791.001 of the Texas Government Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement "). SECTION 2. The City Manager or his designee is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. 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 5930 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. 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 1 North Central Texas Council of Governments INTERLOCAL AGREEMENT BETWEEN THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS AND CITY OF DENTON WHEREAS, the North Central Texas Council of Governments ( NCTCOG) has an interest in assisting local governments in providing information for planning, engineering, public safety, and municipal management; WHEREAS, the CITY OF DENTON (Entity), wishes to have its map -based information system include the 2015 digital orthophotography and /or LiDAR and contour data and has determined that the creation of this resource provides information for a multitude of uses throughout the Entity and thus serves a valid public purpose; WHEREAS, the Entity requires this information to accomplish this purpose and has determined that NCTCOG can fulfill this need, and NCTCOG is willing to reciprocate; and WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code; WHEREAS, NCTCOG and Entity are local governments as that term is defined in Section 791.003(4) of the Texas Government Code; WHEREAS, Section 791.025 of the Texas Government Code authorizes local governments to agree with another local government to purchase goods and services; WHEREAS, a local government that purchases goods and services under Section 791.025 of the Texas Government Code satisfies the requirement of the local government to seek competitive bids for the purchase of goods and services; WHEREAS, NCTCOG and Entity, acting by and through their respective governing bodies, adopt the foregoing premises as findings of said governing bodies; and NOW THEREFORE, the parties, Entity and NCTCOG, agree to the following terms and conditions regarding the creation of digital aerial photography. I. LICENSE AGREEMENT The personnel specified in Appendix A will serve as points of contact for their respective organizations. The following provisions are a license agreement between NCTCOG and the Entity with respect to data products that are identified in section II. NCTCOG is the owner of and EXHIBIT 1 has the right to grant a license to use the said data products free of all liens, claims, encumbrances, and other restrictions and without otherwise violating any rights of any third party, including any patent, copyright, trade secret, or other proprietary rights. The NCTCOG data product may be distributed to the Entity on CD -ROM, DVD, or portable hard drive. The Entity will need to install and operate the NCTCOG data product on properly configured and compatible computer equipment running third party system and application software supplied by the Entity. The Entity will also need to insure that any required data not supplied by NCTCOG is in proper format and no other software or equipment having an adverse impact on the NCTCOG product is present. A. Licensed Operating Environment (1) Operating Equipment. In exchange for monetary consideration listed in section III, the Entity will be granted an exclusive operation license to install, store, load, execute, and display (collectively, "Use ") the NCTCOG data product on as many local area networks and /or end -user workstations as the Entity reasonably needs in support of its own operation (the "Licensed Operating Environment "). Any software components of the NCTCOG data product are provided in machine - readable executable format only. (2) Authorized Users. Unless otherwise agreed in writing, the NCTCOG data product will be used by Entity officials, officers, employees, and authorized contractors only ( "Authorized Users "). A contractor shall be deemed authorized to Use the data products by the Entity or NCTCOG if such Use is incidental to a larger relationship between the contractor and the Entity, and is used for purposes no greater than reasonably needed to achieve the objectives of an actual project undertaken in connection with that relationship. The contractor must agree in writing to be bound by the provisions of this Agreement. B. Permitted Uses (1) Use of NCTCOG Products. The Entity's Authorized Users may Use the NCTCOG data product in the Licensed Operating Environment for any use that furthers the Entity's internal operations or in furtherance of the Entity's mission. (2) Use of Generated Output or Other Data. Except as stated, the Entity will own all original works of authorship it may independently create. Digital output from the Entity's Use of the NCTCOG Data Product may be resized as desired and printed on black and white, color printers, or map plotters. Such printed hardcopies may be distributed to the Entity's officers, employees, citizens, contractors, or other persons in the regular course of business for their internal use or in connection with an actual transaction. Such printed output may be further copied, photographed, or reproduced digitally on the Internet. The Entity may charge a fee for such hardcopy printouts that exceed the actual direct cost of production. Without the prior written consent of NCTCOG, the Entity may not otherwise provide copied, digitized, reproduced, transmitted or disseminated, in whole or in part, any of the original digital data product in any form. 5/15/2015 EXHIBIT 1 II. OBLIGATIONS Upon delivery of the products, NCTCOG shall invoice the Entity for the stipulated amounts listed below. Coverage Area: CITY OF DENTON Square miles= 117 You have agreed to the payment terms listed below and have secured the total amount with purchase order (PO) number (Please enter a PO number if blank. If you have not yet secured a PO, please enter 9999). Invoice Date Fiscal Year or After Delivery Payment Years FY 2015 -16 If a payment term has not been specified, please select FY 2015 or FY 2015 -16 If your payment is spread across two fiscal years you will be invoiced 50% of the total amount each year. Upon receipt of the first invoice, the Entity had thirty (30) days to review the products and pay said invoice or the remaining amount owed to the North Central Texas Council of Governments ( NCTCOG). III. TERMINATION The parties agree that the Entity may terminate this Agreement by providing thirty (30) days written notice to NCTCOG. Such notice shall be given to NCTCOG at the address set forth under its signature below. In the event of such termination, NCTCOG shall reimburse to the Entity pro - ratable portion of the contracted amount for services rendered. The Entity would also reimburse NCTCOG for staff time billed to the project up to termination at a rate of $95.00 /hour. 5/15/2015 2015 Orthophotography $36,796.50 2015 0.5m LiDAR $21,060.00 2015 2' Contours $ .00 2015 Cooperative Project Total $57,856.50 You have agreed to the payment terms listed below and have secured the total amount with purchase order (PO) number (Please enter a PO number if blank. If you have not yet secured a PO, please enter 9999). Invoice Date Fiscal Year or After Delivery Payment Years FY 2015 -16 If a payment term has not been specified, please select FY 2015 or FY 2015 -16 If your payment is spread across two fiscal years you will be invoiced 50% of the total amount each year. Upon receipt of the first invoice, the Entity had thirty (30) days to review the products and pay said invoice or the remaining amount owed to the North Central Texas Council of Governments ( NCTCOG). III. TERMINATION The parties agree that the Entity may terminate this Agreement by providing thirty (30) days written notice to NCTCOG. Such notice shall be given to NCTCOG at the address set forth under its signature below. In the event of such termination, NCTCOG shall reimburse to the Entity pro - ratable portion of the contracted amount for services rendered. The Entity would also reimburse NCTCOG for staff time billed to the project up to termination at a rate of $95.00 /hour. 5/15/2015 EXHIBIT 1 IV. AFFIDAVIT OF PROHIBITED INTEREST NCTCOG acknowledges and represents it is aware of the laws, City Charter, and City Code of Conduct regarding prohibited interests and that the existence of a prohibited interest at any time will render this Agreement null and void. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS Mike Eastland Date Executive Director 616 Six Flags Drive, Suite 200 Arlington, Texas 76011 CITY OF DENTON Signature Name: Title: Street Address: City, State, Zip: 5/15/2015 Date APPROVED AS TO FORM: CITY ATTORNEY EXHIBIT 1 APPENDIX A NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS 5/15/2015 MAIN CONTACT ADDITIONAL CONTACT Name: Shelley Broyles David Raybuck Title: GIS Project Coordinator Chief Technology Officer Department Research and Information Services Research and Information Services Organization: NCTCOG NCTCOG Street Address: 616 Six Flags Drive, Suite 200 616 Six Flags Drive, Suite 200 City, State, Zip Arlington, Texas 76011 Arlington, Texas 76011 Phone /Fax: (817) 695 -9156 (817) 640 -4428 (817) 608 -2357 (817) 640 -4428 E -mail: sbroyles @nctcog.org draybuck @nctcog.org 5/15/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -845, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing and approving a thirty -six month lease agreement with Ricoh -USA, Inc. for production printing equipment for the City of Denton Reprographics division as approved by the State of Texas Department of Information Resources (DIR) Contract Number DIR -TSO- 3041); providing for the expenditure of funds therefor; and providing an effective date (File 5926 -Lease of Production Printing Equipment awarded to Ricoh USA, Inc. in the annual lease amount of $85,758.36 for a thirty -six month total of $257,275.08). FILE INFORMATION The current lease contract for production equipment utilized by the Reprographics division (Reprographics) expires October 1, 2015. The Reprographics division utilizes this equipment to complete various type of printing services that are requested by City departments and in accordance with the City's managed services model. The managed services model states that all printing, copying, finishing, and print- related materials on behalf of the City of Denton will be performed or purchased through the City's Reprographics division. Examples of the type of items that the Reprographics division can provide are business cards, brochures, manuals, reports and signs. Reprographics currently uses the equipment listed below: • 1 Ricoh Pro C900S (90 parts per million (ppm) color production copier /printer) • 1 Ricoh MPC3300 (33 ppm color backup copier /printer) • 1 Ricoh 1107EX (110 ppm black and white production copier /printer) In order to obtain competitive pricing, staff solicited quotes from seven cooperative contract vendors (Exhibit 1). A Best and Final Offer was obtained from the two top scoring vendors with Ricoh USA, Inc. providing the lowest price. The Best and Final Offer initially resulted in a cost savings of $21,637 but the equipment addition of a GBC inline hole punching function lowered the cost savings to $5,941 (Exhibit 2). Staff is recommending replacing this equipment with the equipment listed below which is quoted by Ricoh USA, Inc. through the State of Texas Department of Information Resources Contract Number DIR -TSO -3041 (Exhibit 4). 1 Ricoh 71 1OSX w /fiery (90 ppm color production copier /printer) 1 Ricoh MPC4503 (45 ppm color copier /printer) 1 Ricoh 81005 (95 ppm black and white production copier /printer) City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -845, Version: 1 Replacing the existing equipment with the equipment listed above offers the following benefits: • 71 10S maintains current speed for production color printing and adds the option of an additional color station which will enhance marketing materials • 7110SX allows for cardstock and gloss paper stock to print directly from the tray, which increases productivity • Equipment provides consistent color through job run • Addition of inline GBC punching reduces manual staff time to punch paper stock • Addition of inline GBC punching reduces costs of purchasing pre - punched paper Current vendor relationship Service technicians familiar with usage and type of projects run on the equipment RECOMMENDATION Approve a thirty -six month lease agreement with Ricoh USA, Inc. for production printing equipment for the City of Denton Reprographics division which includes a basic monthly maintenance amount of $2,975.55, and an equipment monthly lease rate of $4, 170.98 for an aggregate monthly amount of $7, 146.53. The annual lease and maintenance rate is $85,758.36 for a thirty -six month total amount of $257,275.08. This amount includes the lease of equipment, maintenance, supplies, and hard drive security options on all equipment. PRINCIPAL PLACE OF BUSINESS Ricoh USA, Inc. Malvern, PA ESTIMATED SCHEDULE OF PROJECT This is a thirty -six month lease agreement which will become effective October 1, 2015. FISCAL INFORMATION Funding for the contract is budgeted in the General Fund Reprographics account 830100.6306. Individual departments are charged for printing services as they are requested. EXHIBITS Exhibit l: Pricing Comparison Exhibit 2: Best and Final Offer Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 9/10/2015 File M ID 15 -845, Version: 1 For information concerning this acquisition, contact: Tonya Demerson at 349 -8129. 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't N LO LO 00 w LO 00 00 r1i oc� a� rn w w LO N V? 00 rn 00 LO N V? 00 0 w - 00 0 m 00 N l0 l0 rn LO N V} O 00 - m -! rq m LO 00 m a� rn 00 m LO N O V? 0 U Z FE u 62 w U 0 Z 0 0 > Z z 0 u z z > > EXHIBIT 2 -BEST AND FINAL OFFER 1 RICOH (BAFO) 2 ZENO (BAFO) City of Denton Equipment Requests RICOH ZENO IMAGING Delivery at 215 East McKinney Street, Denton, Tx DALLAS, TX ARLINGTON, TX ► Equipment 1- Color Production 85+ 90ppm 90ppm Average Mo. Volume (Color 60k - B &W 10k) *(X adds White /Clear option) (adds White /Clear option) Make and Model # Color click rate $ 0.0400 $ 0.0420 B &W click rate $ 0.0095 $ 0.0060 Estimated color overages based on volume 15,000 Avg b &w Clicks included per mo. 60,000/10,000 Overage rate 1 Base lease monthly cost $ 2,465.85 $ 2,603.13 2 Monthly Maintenance Cost $ 2,650.43 $ 2,580.00 3 Staples Included Yes /NO - if no include in maintenance INCLUDED NO 4 All Additional Costs $0.00 $ 399.94 TOTAL MONTHLY COST - EQUIPMENT 1 (Color 1) $ 5,116.28 $ 5,183.13 5 Property Tax Due/ Yes or No? Annual Cost $0.00 $ 891.49 TOTAL ANNUAL COST - EQUIPMENT 1 (Color 1) $ 61,395.36 $ 63,488.99 6 Cost to Remove Equipment /End of Term Removal INCLUDED $ 650.00 7 HDD Removal Cost /End of Term Removal INCLUDED $ 250.00' 8 ► Equipment 2 - B &W Production 75+ 95ppm 95ppm Average Mo. Volume (Color Ok - B &W 10k) Make and Model # B &W click rate $ 0.0030 $ 0.0035 Estimated overages based on volume $ 10,000.00 Clicks included per mo. 50,000 0 Overage rate $ 0.0030 $ 0.0035 1 Base lease monthly cost $ 1,121.33 $ 914.36 2 Monthly Maintenance Cost $ 160.00 $ 35.00 3 Staples Included Yes /NO - if no include in maintenance INCLUDED NO 4 All Additional Costs $0.00 $ 399.94 TOTAL MONTHLY COST - EQUIPMENT 2 (B &W) $ 1,281.33 $ 949.36 5 Property Tax Due/ Yes or No? Annual Cost $0.00 $ 311.46 TOTAL ANNUAL COST - EQUIPMENT 2 (B &W) $ 15,375.96 $ 12,103.72 6 Cost to Remove Equipment /End of Term Removal INCLUDED $ 650.00 7 HDD Removal Cost /End of Term Removal INCLUDED $ 250.00' 8 ► Equipment 3 - Color Walkup 30+ 45ppm 35ppm Average Mo. Volume (Color 3.6k - B &W 1.6k) Make and Model # Color click rate $ 0.0400 $ 0.0450 B &W click rate $ 0.0069 $ 0.0060 Estimated color 3,600 3,600 Estimated B &W 1,600 1,600 1 Base lease monthly cost (B &W) $ 147.80 $ 172.42 2 Monthly Maintenance Cost (Color) $ 165.12 $ 171.60 3 Staples Included Yes /NO - if no include in maintenance INCLUDED NO 4 All Additional Costs $0.00 $ 99.98 TOTAL MONTHLY COST - EQUIPMENT 3 (COLOR 2) $ 312.92 $ 344.02 5 Property Tax Due/ Yes or No? Annual Cost $0.00 $ 59.05 TOTAL ANNUAL COST - EQUIPMENT 3 (COLOR 2) $ 3,755.04 $ 4,287.27 6 Cost to Remove Equipment; /End of'Term Removal INCLUDED $ 340.00 7 HDD Removal Cost /End of Term Removal INCLUDED $ 250.00 8 TOTAL EQUIPMENT MONTHLY COST TOTAL EQUIPMENT ANNUAL COST TOTAL EQUIPMENT 36 -MONTH CONTRACT TERM COST OPTIONAL GBC W /GBC CURRENT VENDOR: RICOH LAST CONTRACT PRICING SAVINGS W/O GBC SAVINGS W /GBC Professional Services - includes installation and user training Service contract - requested to include all parts, labor and supplies including staples. Single meter click for up to 12x18. Service pricing is firm - fixed, and will not increase for term of lease. 5th toner station $15,696.001 $ 19,120.32 r *Additional cost - staples 5th toner station $263,216.18 $21,637.10 $5,941.10 $263,216.18 $21,226.24 $2,105.92 EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING AND APPROVING A THIRTY -SIX MONTH LEASE AGREEMENT WITH RICOH -USA, INC. FOR PRODUCTION PRINTING EQUIPMENT FOR THE CITY OF DENTON REPROGRAPHICS DIVISION AS APPROVED BY THE STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES (DIR) CONTRACT NUMBER DIR -TSO- 3041); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5926 -LEASE OF PRODUCTION PRINTING EQUIPMENT AWARDED TO RICOH USA, INC. IN THE ANNUAL LEASE AMOUNT OF $85,758.36 FOR A THIRTY -SIX MONTH TOTAL OF $257,275.08). WHEREAS, pursuant to Resolution 92 -019, the State of Texas has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the State of Texas Department of Information Services Go Direct Program at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "File Number" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NTTMF.R VF.NT)OR AMOUNT 5926 Ricoh -USA, Inc. $257,275.08 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the State of Texas Department of Information Services Go Direct Program for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the State of Texas Department of Information Services Go Direct Program, and the purchase orders issued by the City. EXHIBIT 3 SECTION 3. Should the City and persons submitting approved and accepted items set forth in File 5926 wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the State of Texas Department of Information Services Go Direct Program, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the State of Texas Department of Information Services Go Direct Program, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 5. 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 BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY p BY: DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 City of Denton Contract # 5926 Reprographics Equipment Lease DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 10 R4 1 1 1 1 1 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Appendix J to DIR Contract No. DIR -TSO -3041 Supplementary Schedule to Master Lease Agreement (MLA) Master Lease Agreement Date of Master Lease Number: 9 Agreement: Name of Lessee: City of Denton In consideration of the mutual covenants set forth herein, the MLA in the form of Appendix D to DIR Contract No. DIR -TSO -3041 is deemed incorporated herein by reference, and Ricoh USA, Inc. (hereinafter "We ", "Us" or "Our) and the lessee named above (hereinafter "You" and "Your ") hereto enter into and agree to be bound by the terms and conditions of Appendix D, MLA to DIR Contract No. DIR -TSO -3041. In addition, We and You hereby agree to enter into this supplementary schedule (this "Schedule') to the MLA, in accordance with the terms and conditions set forth below and Appendix D, MLA to DIR Contract No. DIR -TSO -3041 incorporated herein by reference. 1. Lease of Equipment: We hereby agree to lease to You and You hereby agree to lease from Us, the following- described Equipment upon the terms and conditions set forth in this Schedule and in the Master Lease Agreement: 4 • ' • ❑ See Attached Equipment Eq ui ment Schedule �� -- Equipment Location (if different than � address shown above): Quantit y Equipment Make, Model & Seral Numb_r ( Re uired ) Quantit y E ui ment Make, Model &Serial Number (Required) � 1 Ricoh PR08100S ................ Ricoh MPC4503 Ricoh PR07110SX .. ,.�.... • • • • Initial Term: 6 . , _months Leas yr mmmm : • - e Payment: $ 4_1_7 0. 9 8 2. Equipment Supplier(s): Ricoh USA, Inc. 3. Eauipment Location(s): 215 E. McKinnev Street Denton. Texas 76201 4. Miscellaneous: This Schedule may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same document. You acknovdedge that You have received a copy of this Schedule and agree that a facsimile or other copy of this Schedule containing Your faxed or copied signature may be treated as an original and will be admissible as evidence of this Schedule. You waive notice of receipt of a copy of this Schedule with Our original signature. You hereby represent to Us that this Schedule is legally binding and enforceable against You in accordance with its terms. This Schedule is a Schedule to the MLA entered into in accordance with the terms and conditions of the Appendix D, MLA and DIR Contract No. DIR - TSO -3041. PO Number: Ricoh USA, Inc. ( tus6v, ( ivusu, w Date: By X By: X Print Name: ason Hi n"s aw Print Name: Date: %� DocuSign Envelope ID: 4El3A215-1137-4FFB-AC75-FlB3290ED41C RICHO Ill EXHIBIT 4 Ricoh USA, Inc. 70 Valley Stream Parkway Malvern, PA 19355 Product Schedule Number: Master I.c.. Agreement Number: This Product Schedule (this "Schedule") is between Ricoh USA, Inc. ("we" or "us") and CITY OF DENTON - ------ . . . . . . . . . . - - - - -- . ..................... ... . . . . ........... as customer or lessee ("Customet" or "you"), This Schedule constitutes a "Schedule," "Product S-ch- ule,"O'r, "OrderA,gr,e­c, m`cnt­' as ... applicably, -under th- e ---------------- (together with any amendments, _ --- D,,IR=TS-C--3-O..41--A.g..r..e.eme.nt .. .. .. .. .. .. ----------- ­_ attachments and addenda thereto, the "Lease Agreement") identified above, between you and _ Ri coh USA, All terms and conditions of the Lease Agreement are incorporated into this Schedule and made a part hereof. If we are not the lessor under 1ho Lease Agreement, then, solely for purposes of this Schedule, we shall be deemed to be the lessor under the Lease Agreement It is the intent of the parties that this Schedule be separately enforceable as a complete and independent agreement, independent of all other Schedules to the Lease Agreement FO It NI ATIPN Tf Y OF DENTON 215 E MCKINNEY ST REPROGRAPHICS DEPT BASEMENT Producli n' cumm v A dd i r_ss DENTON TX X 76201-4299 on n ty State zoll Billing Contact Telephene Number (940 }349 -8E29 . . . ....... PRODUC7T/EQUIPMENT DESCRIPTION ("Product") TiAirya Dernerson 215 E MCKINNEY ST REPROGRAPHICS DEPT BASEMENT' Billing Address Billing Contact Facsimile Number TX 76201-4299 �'Ufle Zin Billing Contact E-Mail Add... tonya,deinersori(cDcityofderiton.cotii ...... ....... . Minim Minimum Payment Minimum Payment Billing Frequency Advance Paynaent (Without Mx) Q Monthly E] I st Payment ❑ Quarterly I st & Last Payinern 14,170.98 ❑ Other: E] Other . . .... . . . ...... . . ........... . . . ..... Sales Tax Exempt: (DYES (Attach Exemption Certificate) Customer Billing Reference Number (P.O. 4, etc) .............. . Addendum(s) attached: E] YES (check ifyes and indicate total number of pages: TERMS AND CONDITIONS I The first Payment will be due on the Effective Date If the Lease Agreement uses the terms "Lease Payment" and "Commencement Date" rather than "Payment" and "Effective Date," then, for purposes of this Schedule, the term "Payment" shall have the same meaning as "Lease Payment," and the term "Effective Date' shall have the same meaning as "Commencement Date." 2 You, the undersigned Customer, have applied to us to rent the above-described Product for lawful commercial (non-consumer) purposes THIS IS AN UNCONDITIONAL, NON-CANCELABLE AGREEMENT FOR THE MINIMUM TERM INDICATED ABOVE, except as otherwise provided in any non- appropriation provision of the Lease Agreement, if applicable If we accept this Schedule, you agree to rent the above Product from us, and we agree to rent such Product to you, on all the terms hereof, including the terms and conditions of the Lease Agreement THIS WILL ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS SCHEDULE AND THE LEASE AGREEMENT AND HAVE RECEIVED A COPY OF THIS SCHEDULE AND THE LEASE AGREEMENT. 3 Additional Provisions (ifany) are: .......... . .......... ,m....... - - -_ - - ------------- — -------------------- - ... - -- - — -- Dmusigh6dwy. THE PERSON SIGNING THIS SCHEDULE ON BEHALF OF THE CUS'rOMERREP14A l,.Siepted byIARICOH I6IE, INC. 9A DONO. 'USTOMER cc, J&Sovu MFObw By: X By: X AF8FB4lDD7- Authorized ­,Kigrier Sigp mr, AnehoHwdNipr­Wgo,,h- Jason Hinshaw Printed Nscic Printed N­,c: VP of sales Tidc: ....... . .... --- ---- . .... 09/02/2015 23:52 PM 16487016 mill IRPRWA1117% , 101111111111 LSEADD PS 04 12 Ricoh(k) mid the Ricoh Logo are registered trademarks of Ricoh Company, Lld• Page I of I DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C MINN EXHIBIT 4 ORDER AGREEMENT SaleType:LEASE ORDER AGREEMENT CONSISTS OF THIS PAGE AND THE TERMS AND CONDITIONS BILL TO INFORMATION Customer Legal Name: CITY OF DENTON Address Line 1: 215 E MCKINNEY ST Contact: Demerson,Tonya ... Address Line 2: REPROGRAPHICS DEPT BASEMENT Phone: (940) 349 -8129 City: DENTON E -mail _ .. ST /Zip: TX/76201 -4299 County: DENTON Fax: m. �'.. �. .. �.. �. .�...�.�.�...�....�- ..tonya. emerson cityo enton.com..._......m... ���--- -��6 -- ADDITIONAL ORDER INFORMATION Check All That Apply: ® Sales Tax Exempt (Attach Valid Exemption Certificate) ® Fixed Service Charge ❑ Add to Existing Service Contract # ❑ PO Included PO #T1O © PS Service (Subject to and governed by separate Statement of Work) ❑ Syndication ❑ IT Service (Subject to and governed by separate Statement of Work) SERVICE INFORMATION Service Term Months) Base Billing Frequency Overage T _w Billing Frequency. 36 Months MONTHLY QUARTERLY SHIP TO INFORMATION Customer Name: CITY OF DENTON W Address Line 1: 215 E MCKINNEY ST Contact: Demerson,Tonya Address Line 2.:........ REPROGRAPHICS DEPT BASEMENT .m..m..m.m ................ Phone: _.m.......................(..._ 4 _......................... 940) 349 -8129 City; DENTON E -mail: tonya.demerson @cityofdenton.com .................. ST ST / Zip TX/76201 -4299 County: DENTON Fax: .......................................... PRODUCT INFORMATION B Color Service Allowance Allowance Service Base Product Description Qty B/W Ovg or Ovg Type (Per Bess Billing (Per Base Billing (Per Base Billing Frequency) Frequency) Freauency) RICOH PR08100S 1 Gold 50,000 $0,0030 0 N/A $160.00 RICOH MPC4503 1 Gold 1,600 $0.0069 3,600 $0.0400 $165.12 RICOH 10SX BRANDING ING SE T 1 Gold 10,000 $0.0090 60,000 $0.0400 $2,650.43 SE 9/2/2015 will INRI TZAIN.1 ` 10 ,I III Version # 5.15 Page # 1 16487016 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C „n » » ° ° ° °IIIIUIUI II EXHIBIT 4 +millll��l��111 \1111u � ��� \110 »mu» mum »m '4���Ill��lil�pomioumi���ll�` "Iu uuuuuuuuuuu BASIC CONNECTIVITY / PS / IT SERVICES INFORMATION BASIC CONNECTIVITY / PS / IT Services Description Quantity PPSE TRAINING - PRO M8100S/8120S W /FIERY _.1 PPSE TRAINING - PRO M8100S/8120S NO FIERY - 1 -� HDSURRENDER - SURRENDER HARD DRIVE TO CUSTOMER _............ _ ......... ..................... 3 [OA] PPSE TRAINING - C7100 W/ E83A FIERY 1 TS NETWORK & SCAN - SEG BC4 1 ORDER TOTALS Service Type Offerings. Product Total: Gold: Includes all supplies and staples. BASIC CONNECTIVITY / PS / IT Excludes paper. Services: Silver: Includes all supplies. Excludes paper and Buyout: sta ies. Bronze: Parts and labor only. Excludes paper, staples and sullies. Grand Total: (Excludes Tax) Additional Provisions: 9/2/2015 .III INRI TN'ti 003111111111111111 Version # 5.15 Page # 2 16487016 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 iu EQUIPMENT REMOVAL /BUYOUT AUTHORIZATION Customer Name: CITY OF DENTON _ . � . .................. ....... ..-... . ���..... 349- 8129 ...._ �_ Contact Name: Demerson Tony a Phone: (, 9 Address: 215 E MCKINNEY ST City: DENTON ............... . State: TX Zip: 76201 -4299 Fax /Email: tonya.demerson @cit ofdentoncom This Authorization applies to the equipment identified above and to the following Removal /Buy Out Option This Authorization will confirm that Customer desires to engage Ricoh USA, Inc. ( "Ricoh ") to pick -up and remove certain items of equipment that are currently (i) owned by Customer or (ii) leased from Ricoh or other third party (as specified below), and that you intend to issue written or electronic removal requests (whether such equipment is identified in this Authorization, in a purchase order, in a letter or other written form) to Ricoh from time to time for such purpose. Such removal request will set forth the location, make, model and serial number of the equipment to be removed by Ricoh. By signing below, you confirm that, with respect to every removal request issued by Customer (1) Ricoh may rely on the request, and (2) the request shall be governed by this Authorization. Notwithstanding the foregoing, the parties acknowledge and agree that Ricoh shall have no obligation to remove, delete, preserve, maintain or otherwise safeguard any information, images or content retained by, in or on any item of equipment serviced by Ricoh, whether through a digital storage device, hard drive or similar electronic medium ( "Data Management Services "). If desired, Customer may engage Ricoh to perform such Data Management Services at its then - current rates. Notwithstanding anything in this Authorization to the contrary, (i) Customer is responsible for ensuring its own compliance with legal requirements pertaining to data retention and protection, (ii) it is the Customer's sole responsibility to obtain advice of competent legal counsel as to the identification and interpretation of any relevant laws and regulatory requirements that may affect the customer's business or data retention, and any actions required to comply with such laws, (iii) Ricoh does not provide legal advice or represent or warrant that its services or products will guarantee or ensure compliance with any law, regulation or requirement, and (iv) the selection, use and design of any Data Management Services, and any and all decisions arising with respect to the deletion or storage of any data, as well as any loss of data resulting therefrom, shall be the sole responsibility of Customer, and Customer shall indemnify and hold harmless Ricoh and its subsidiaries, directors, officers, employees and agents from and against any and all costs, expenses, liabilities, claims, damages, losses, judgments or fees (including reasonable attorneys' fees) (collectively, "Losses ") arising therefrom or related thereto. DEquipment Removal (Leased by Customer). In addition to the terms and conditions set forth above, the following terms and conditions shall apply for equipment removals of equipment leased by Customer: Except for the obligations of Ricoh to pick up and remove the identified equipment, Ricoh does not assume any obligation, payment or otherwise, under any lease agreement, which shall remain Customer's sole responsibility. As a material condition to the performance by Ricoh, Customer hereby releases Ricoh from, and shall indemnify, defend and hold Ricoh harmless from and against, any and all claims, liabilities, costs, expenses and fees arising from or relating to any breach of Customer's representations or obligations in this Authorization or of any obligation owing by Customer under its lease agreement. CUSTOMER RICOH USA, IN:�In DocuSigned by: , 0,sbvu C1 tl.s6w By: . — By: Jason ate' Name Name ........ ._ Title Title VP of Sales 91.3 Z . . Date Date 63109v3 Page # 1 ,N� w ' DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Nor, ; AS � 1 10 n4 1 i � • 1 t I' DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C Page 1 of 6 EXHIBIT 4 MM Ricoh USA, Inc. Vendor ID 12227835217 URIII „. Vendor Website (htti2s://www.ricoh- usa.com /majoraccount /txdir /) HUl13 "Type Non HUB E Rate Qualified Contact Ricoh USA, Inc. Contact Ben Rotz (mailto:ben.rotz@ricoh- usa.com Phone (512) 381 -7842 Fax (913) 273 -1567 Contract Overview MIR Contract IMuirnber DIR -TSO -3041 Contract, Terim Ind Date 6/25/2016 Contract UExp Irate 6/25/2019 Contact DIR Ricoh offers Ricoh branded hardware and related services for copiers, printers, scanners, and document management. Additional products and services include: lease and rental agreements. Customers can purchase directly through this DIR contract. Contracts may be used by state and local government, public education, other public entities in Texas, as well as public entities outside the state. One reseller is available for Riso products under this contract. Contract Documents DIR -TSO -3041 Contract PDF (190.39KB) I,IIIsi! :tT,a..i+p�I(u) /.rtr cturI /III - "I 3041 Contract. d�fl o DIR -TSO -3041 Appendix A Standard Terms and Condtions PDF (480 91 KB) ttRl" a bli�hiir ir�t rt Il ✓Qr�t r I C r °C w l w .ggntjrAq /P1L -T 4 .w 3041 Appendix A Standard Terms and Condtions d�fl http: / /dir.texas.govNiew- Search / Contracts- Detail.aspx ?contractnumber= DIR -TSO -3041 &k... 9/2/2015 DocuSign Envelope ID: 4El3A215-1137-4FFB-AC75-F,lB3290ED41C Page 2 of 6 EXHIBIT 4 (http://pmb1i.5.h nAl/gq --,J L L gr- - ntr@LC A�51dAt 3041 Appendix I Statement of Work.pdf) Nt-tp:Laqb—rLshin&e,xt,d T. eras ip-oj al /inter,aAgl Iitract -arld5 rvice5,/Contracts /D T- .- OT2 I IF-, I U NOTMEMUTOMWaILTA M-1431IM-1.1 -AL4404"Tes-U] 111111 Adobe Reader (http://get.adobe.com/reader/) in order to view these documents. Reseller Vendor Contacts http://dir.texas.govNiew-SearchIContracts-Detail.aspx?contractnumber=DIR-TSO-304l &k... 9/2/2015 DocuSign Envelope ID: 4El3A215-1137-4FFB-AC75-FlB3290ED41C Page 6 of 6 EXHIBIT 4 I low 1"o Order 1 . Fbir product and pricing infoirmation, Vsk the M oh U.5..& �.aC., . ........ . L ................. .......... .. oh....- ................ &r.a.-f m.g.!2jZtzdjir1), webs: w contact Ben Rou js�flto'.ben....ro z r c h u a,.c rn at .... .. . .......... . ...................................... ... -.1 ........ .. I I .. . .... . ....... 1 C . ....... 0 . ...................... S ............ ........ 0 ), (512) 381 7842, ReseNeir Vendors are a& avai�able through th s contract. Select froirn any Resekrr Veridor contact fisted b6ovv to Mso obtain product and prbrig hforniadon, 2,, Generate a Purchase order made payaNAt3qWMAOSA, Ilnc. or any Resell e'r Vendor �dsted [':)6ovv, Available IBrainda 0 tot all) R:Iicoh Avalialble P)iroducts & Services ('10 tot all) Copiers Lease Agreement - NJnte.irs Cop�ers Scanneii's - MFF1 Mainterance - Printers Cop�ers Scaininers - MRP Mainaged DOCUrneint Outlput Muffifunction Show more r)ffirn N43rh�nac Cornr'nodfty Codes ('117, total) 204-76- Priinters, Mlkjet 204-77 - Printeirs, Laser. 204-78- Flirint&s, Pen P' otter 204-79 Pi raters, IC, gitaV 204.80 - Printers, `11"herrrnM Show ml:)re In A-. P '? - D r u in W cn r c h A o r ir n r r., FNI r Ir f K 11 r, d' m � C en R"' .0 -I C C U f Y . A ) 0 2015 Department of Information Resources 300 W. 15th Street, Suite 1300 Austin, TX 78701 1512.475.4700 http://dir.texas.govNiew-SearchIContracts-Detail.aspx?contractnumber=DIR-TSO-3O41&k... 9/2/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Appendix D to DIR Contract No. DIR -TSO -3041 MASTER LEASE AGREEMENT 1. Scope. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the Equipment described on each Supplementary Schedule ( "Schedule "), which is a separate agreement executed from time to time by Lessor and Lessee and makes specific reference to this Master Lease Agreement ( "MLA "). The terms and conditions contained herein shall apply to each Schedule that is properly executed in conjunction with this MLA and made subject to such terns and conditions as if a separate MLA were executed for each Schedule by the Lessee. Each Lessee has made an independent legal and management determination to enter into each Schedule. DIR has not offered or given any legal or management advice to the Lessor or to any Lessee under any Schedule. Lessee may negotiate additional terms or more advantageous terms with the Lessor to satisfy individual procurements, such terms shall be developed by the Lessor and Lessee and stated within a Rider to the MLA or the Schedule. To the extent that any of the provisions of the MLA conflict with any of the terms contained in any Schedule, the terms of the Schedule shall control. It is expressly understood that the term "Equipment" shall refer to the Products and any related Services as allowed within said Contract number DIR -TSO -3041, as described on a Schedule and any associated items therewith, including but not limited to all parts, replacements, additions, repairs, and attachments incorporated therein and /or affixed thereto, all documentation (technical and /or user manuals), operating system and application software as needed. If more than one Lessee is named in a Schedule, the liability of each named Lessee shall be joint and several. However, unless DIR leases Equipment for its own use, DIR is not a party to any Schedule executed under this MLA and is not responsible for Rents, payments or any other obligations under such Lessee's Schedule. The invalidation, fulfillment, waiver, termination, or other disposition of any rights or obligations of either a Lessee or the Lessor or both of them arising from the use of this MLA in conjunction with any one Schedule shall not affect the status of the rights or obligations of either or both of those parties arising from the use of this MLA in conjunction with any other Schedule, except in the Event of Default as provided in Section 23 of this MLA. Any reference to "MLA" shall mean this Agreement, including the Opinion of Counsel, and any riders, amendments and addenda thereto, and any other documents as may from time to time be made a part hereof upon mutual agreement by DIR and Lessor. As to conditions precedent to Lessor's obligation to purchase any Equipment, (i) Lessee shall accept the MLA terns and conditions as set forth herein and execute all applicable documents such as the Schedule, the Acceptance Certificate, Opinion of Counsel, and any other documentation as may be required by the Lessor that is not in conflict with this MLA, and (ii) there shall, be no material adverse change in Lessee's financial condition except as provided for within Section 7 of this MLA. 2. Term of MLA. The term of this MLA shall commence on the last date of approval by DIR and Lessor of Amendment Number XXX (XX) and shall continue until (i) the obligations of Lessee under every Schedule are fully DIR Contract # DIR -TSO -3041 Page 1 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 discharged, (ii) the full and final expiration date of the Contract, or (iii) either party exercises their termination rights as stated within Appendix A, Section 1113 of the Contract. In regards to either the Contract expiration date or Contract termination date or the termination of this MLA, before all obligations of Lessee under every Schedule are fully discharged, such Schedules and such other provisions of the Contract and this MLA as may be necessary to preserve the rights of the Lessor or Lessee hereunder shall survive said termination or expiration. 3. Term of Schedule. The term for each Schedule, executed in conjunction to this MLA, shall commence on the date of execution of an Acceptance Certificate by the Lessee or twenty (20) days after the delivery of the last piece of Equipment to the Lessee ( "Commencement Date "), and unless earlier terminated as provided for in the MLA, shall continue for the number of whole months or other payment periods as set forth in the applicable Schedule Term, commencing on the first day of the month following the Commencement Date (or commencing on the Commencement Date if such date is the first day of the month). The Schedule Term may be earlier terminated upon: (i) the Non - appropriation of Funds pursuant to Section 7 of this MLA, (ii) an Event of Loss pursuant to Section 18 of this MLA, or (iii) an Event of Default by Lessee and Lessor's election to cancel the Schedule pursuant to Section 24 of this MLA. 4. Administration of MLA. (a) For requests involving the leasing of Equipment, each potential Lessee will submit its request directly to the Lessor. Lessor shall apply the then current Equipment pricing discounts as stated within the Contract or the price as agreed upon by Lessee and Lessor, whichever is lower. Lessor shall submit the lease proposal and all other applicable documents directly to the potential Lessee and negotiate the Schedule terms directly with the potential Lessee. (b) All leasing activities in conjunction to this MLA shall be treated as a "purchase sale" in regards to the requirements of the Lessor to report the sale and make payment of the DIR administrative fee as defined within Section 5 of the Contract. (c) Upon agreement by Lessor and Lessee on pricing, availability and the like, Lessee may issue a purchase order in the amount indicated on the Schedule to Lessor for the Equipment and reference said Contract number DIR -TSO -3041 on the purchase order. Any pre - printed terms and conditions on the purchase order submitted by the Lessee shall not be effective with respect to the lease of Equipment hereunder. Rather, the terms and conditions of this MLA and applicable Schedule terms and conditions shall control in all respects. (d) Nothing herein shall require the Lessor to use this MLA exclusively with Lessees. Further, this MLA shall not constitute a requirements Agreement and Lessor shall not be obligated to enter into any Schedule for the lease of Equipment with any Lessee. 5. Rent Payments. During the Schedule Term and any renewal terms, Lessee agrees to pay Lessor Rent Payments. Rent Payments shall be the amount equal to the Rent Payment amount specified in the Schedule multiplied by DIR Contract # DIR -TSO -3041 Page 2 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 the amount of the total number of Rent Payments specified therein. Lessee shall pay Rent Payments in the amount and on the due dates specified by Lessor until all Rent Payments and all other amounts due under the Schedule have been paid in full. If the Schedule Commencement Date is other than the first day of a month, Lessee shall make an initial payment on the Schedule Commencement Date in an amount equal to one - thirtieth of the Rent Payment specified in the Schedule for each day from the Schedule Commencement Date (including the Schedule Commencement Date) through the last day of such month (including that day). For example, if a scheduled payment amount is $3,000 and the Scheduled Commencement date is the 15' of the month, a payment of $1,500 will be made. Any amounts received by Lessor from the Lessee in excess of Rent Payments and any other sums required to be paid by the Lessee shall be held as non - interest bearing security for Lessee's faithful performance under the conditions of this MLA and any Schedule. All Rent Payments shall be paid to the Lessor at the address stated on the Schedule or any other such place as the Lessor or its assigns may hereafter direct to the Lessee. Lessee shall abide by Appendix A, Section 8J of the Contract in making payments to the Lessor. Any sum received by the Lessor later than ten (10) business days after its due date will bear interest from such due date at the rate of one - percent (1 %) per month (or the maximum rate allowable by law, if less) until paid. Late charges, attorney's fees and other costs or expenses necessary to recover Rent Payments and any other amounts owed by Lessee hereunder are considered an integral part of this MLA. Each Schedule is a net lease and except as specifically provided herein, Lessee shall be responsible for all costs and expenses arising in connection with the Schedule or Equipment. Lessee acknowledges and agrees, except as specifically provided for in Section 7 of this MLA, that its obligation to pay Rent and other sums payable hereunder, and the rights of Lessor and Lessor's assignees, shall be absolute and unconditional in all events, and shall not be abated, reduced or subject to offset or diminished as a result of any event, including without limitation damage, destruction, defect, malfunction, loss of use, or obsolescence of the Equipment, or any other event, defense, counterclaim or recoupment due or alleged to be due by reason of any past, present or future claims Lessee may have against Lessor, Lessor's assigns, the manufacturer, vendor, or maintainer of the Equipment, or any person for any reason whatsoever. "Price" shall mean the actual purchase price of the Equipment. Rent Payments shall be adjusted proportionately downward if the actual price of the Equipment is less than the estimate (original proposal), and the Lessee herein authorizes Lessor to adjust the Rent Payments downward in the event of the decrease in the actual Equipment price. However, in the event that the Equipment price is more than the estimate (original proposal), the Lessor may not adjust the Rent Payment without prior written approval of the Lessee. 6. Liens and Taxes. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances, except those in favor of Lessor or its assigns, and shall give Lessor immediate notice of any attachment or other judicial process affecting any item of Equipment. Unless Lessee first provides proof of exemption therefrom, Lessee shall promptly reimburse Lessor, upon receipt of an accurate invoice, as an additional sum payable under this MLA, or shall pay directly if so requested by Lessor, all license and registration fees, sales, use, personal property taxes and all other taxes and charges imposed by any federal, state, or local governmental or taxing authority, from which the Lessee is not exempt, whether assessed against Lessee or Lessor, relating to the purchase, ownership, leasing, or use of the Equipment or the Rent Payments, excluding all taxes computed DIR Contract # DIR -TSO -3041 Page 3 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 upon the net income of Lessor. Any tax statement received by the Lessor, for taxes payable by the Lessee, shall be promptly forwarded by the Lessor to the Lessee for payment. 7. Appropriation of Funds. (a) This paragraph applies only to Lessees designated as state agencies defined in Section 2054.003, Texas Government Code, including institutions of higher education as defined in Texas Education Code, Section 61.003 and those state agencies utilizing a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds are not appropriated to continue the Schedule Term for any Fiscal Period (as set forth on the Schedule) of Lessee beyond the Fiscal Period first in effect at the Commencement of the Schedule Term, Lessee may terminate the Schedule with regard to not less than all of the Equipment on the Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period confirming the Schedule will be so terminated. All obligations of Lessee to pay Rent due after the end of the Fiscal Period for which such termination applies will cease, all interests of Lessee in the Equipment will terminate and Lessee shall surrender the Equipment in accordance with Section 13 of this MLA. Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of funds to avoid termination of the Schedule by taking reasonable and appropriate action including the inclusion in Lessee's budget request for each Fiscal Period during the Schedule Term hereof a request for adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations during the first Fiscal Period of the Schedule Term. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rent hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general revenues, funds or monies of Lessee or the State of Texas beyond the Fiscal Period for which sufficient funds have been appropriated to pay Rent hereunder. (b) This paragraph applies only to Lessees designated as local government entities. Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds are not appropriated for Lessee to continue the Schedule Term for any Fiscal Period (as set forth on the Schedule) of the Lessee beyond the Fiscal Period first in effect at the commencement of the Schedule Term, the Lessee may terminate the Schedule with regard to not less than all of the Equipment on the DIR Contract # DIR -TSO -3041 Page 4 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period confirming the Schedule will be terminated. All obligations of Lessee to pay Rent due after the end of the Fiscal Period first in effect at the commencement of the Schedule Term will cease, all interests of Lessee in the Asset(s) will terminate and Lessee shall surrender the Equipment in accordance with Section 13 of this MLA. Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of funds to avoid termination of the Schedule by taking reasonable and appropriate action including the inclusion in Lessee's budget request for each Fiscal Period during the Schedule Term hereof a request for adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations during the first Fiscal Period of the Schedule Term. 8. Selection of Equipment. The Equipment is the size, design, capacity and manufacture selected by Lessee in its sole judgment and not in reliance on the advice or representations of Lessor. No representation by the manufacturer or a vendor shall in any way affect Lessee's duty to pay Rent and perform its other obligations hereunder. Each Schedule is intended to be a "finance lease" as defined in Article 2A of the Uniform Commercial Code. Lessor has acquired or will acquire the Equipment in connection with this MLA. Lessor shall not be liable for damages for any reason, for any act or omission of the supplying manufacturer. Lessor agrees, to the extent they are assignable, to assign the Lessee, without recourse to Lessor, any warranties provided to Lessor with respect to the Equipment during the Term of the applicable Schedule. Lessee acknowledges that neither its dissatisfaction with any unit of Equipment, nor the failure of any of the Equipment to remain in useful condition for the Schedule Term, nor the loss of possession or the right of possession of the Equipment or any part thereof by the Lessee, shall relieve Lessee from the obligations under this MLA or Schedule Term. Lessee shall have no right, title or interest in or to the Equipment except the right to use the same upon the terms and conditions herein contained. The Equipment shall remain the sole and exclusive personal property of the Lessor and not be deemed a fixture whether or not it becomes attached to any real property of the Lessee. Any labels supplied by Lessor to Lessee, describing the ownership of the Equipment, shall be affixed by Lessee upon a prominent place on each item of Equipment. 9. Inspection and Acceptance. Promptly upon delivery of the Equipment, Lessee will inspect and test the Equipment, and not later than ten (10) business days following the Commencement Date, Lessee will execute and deliver either (i) an Acceptance Certificate, or (ii) written notification of any defects in the Equipment. If Lessee has not given notice within such time period, the Equipment shall be conclusively deemed accepted by the Lessee as of the tenth (10th) business day. Lessor, its assigns or their agents, shall be permitted free access at reasonable times authorized by the Lessee, the right to inspect the Equipment. 10. Installation and 'Delive • Use of E ui ment• Repair and Maintenance. (a) All transportation, delivery, and installation costs associated with the Equipment shall be borne by the Lessee. Lessor is not and shall not be liable for damages if for any reason the manufacturer of the Equipment delays the delivery or fails to fulfill the order by the Lessee's desired timeframe. Any delay in delivery by the manufacturer shall not affect the validity of any Schedule. Lessee shall provide a DIR Contract # DIR -TSO -3041 Page 5 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 place of installation for the Equipment, which conforms to the requirements of the manufacturer and Lessor. (b) Subject to the terms hereof, Lessee shall be entitled to use the Equipment in compliance with all laws, rules, and regulations of the jurisdiction wherein the Equipment is located and will pay all cost, claims, damages, fees and charges arising out of its possession, use or maintenance. Lessee agrees to solely use the Equipment in the conduct of Lessee's business. Lessee agrees, at its expense, to obtain all applicable permits and licenses necessary for the operation of the Equipment, and keep the Equipment in good working order, repair, appearance and condition (reasonable wear and tear is acceptable). Lessee shall not use or permit the use of the Equipment for any purpose, which according to the specification of the manufacturer, the Equipment is not designed or reasonably suited. Lessee shall use the Equipment in a careful and proper manner and shall comply with all of the manufacturer's instructions, governmental rules, regulations, requirements, and laws, and all insurance requirements, if any, with regard to the use, operation or maintenance of the Equipment. (c) Lessee, at its expense, shall take good and proper care of the Equipment and make all repairs and replacements necessary to maintain and preserve the Equipment and keep it in good order and condition. Unless Lessor shall otherwise consent in writing, Lessee shall, at its own expense, enter into and maintain in force a maintenance agreement covering each unit of Equipment. Lessee shall furnish Lessor with a copy of such agreement, upon request. Lessee shall pay all costs to install and dismantle the Equipment. Lessee shall not make any alterations, additions, or improvements, or add attachments to the Equipment without the prior written consent of Lessor, except for additions or attachments to the Equipment purchased by Lessee from the original supplier of the Equipment or any other person approved by Lessor. If Lessee desires to lease any such additions or attachments, Lessee hereby grants to Lessor the right of first refusal to provide such lease financing to Lessee for such items. Subject to the provisions of Section 13B of this MLA, Lessee agrees to restore the Equipment to Return Condition prior to its return to the Lessor. 11. Relocation of Equipment. Lessee shall at all times keep the Equipment within its exclusive possession and control. Upon Lessor's prior written consent, which shall not be unreasonably withheld, Lessee may move the Equipment to another location of Lessee within the continental United States, provided (i) Lessee is not in default on any Schedule, (ii) Lessee executes and causes to be filed at its expense such instruments as are necessary to preserve and protect the interests of Lessor and its assigns in the Equipment, (iii) Lessee pays all costs of, and provides adequate insurance during such movement, and (iv) Lessee pays all costs otherwise associated with such relocation. Notwithstanding the foregoing, Lessee may move the Equipment to another location within Texas without notification to, or the consent of, Lessor. Provided, however, that not later than December 31 of each calendar year, Lessee shall provide Lessor a written report detailing the total amount of Equipment at each location of Lessee as of that date, and the complete address for each location. Lessor shall make all filings and returns for property taxes due with respect to the Equipment, and Lessee agrees that it shall not make or file any property tax returns, including information returns, with respect to the Equipment. DIR Contract # DIR -TSO -3041 Page 6 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 12. Ownership. The Equipment shall at all times be and remain the sole and exclusive property of Lessor, subject to the parties rights under any applicable software license agreement. Lessee shall have no right, title or interest in the Equipment except a leasehold interest as provided for herein. Lessee agrees that the Equipment shall be and remain personal property and shall not be so affixed to realty as to become a fixture or otherwise to lose its identity as the separate property of the Lessor. Upon request, Lessee will enter into any and all agreements necessary to ensure that the Equipment remain the personal property of Lessor. 13. Purchase and Renewal Options, Location and Surrender of Equipment. (a) Not less than ninety (90) days prior to the expiration of the initial Schedule Term Lessor shall notify Lessee of options for continued use of Equipment. Lessee shall have the option to: (i) renew the Schedule as to all but not less than all of the Equipment, or (ii) purchase all but not less than all of the Equipment for cash or by the Lessor's acceptance of a purchase order from Lessee upon the last business day on or prior to the expiration of the Schedule Term thereof for a price equal to the amount set forth in the Schedule. If the Fair Market Value (FMV) Purchase Option was selected on the Schedule, the FMV shall be determined on the basis of and shall be equal in amount to, the value which would be obtained in an arms - length transaction between an informed and willing buyer -user (other than a used equipment dealer), who would be retaining the Equipment as part of its current operations, in continuing and consistent use, and an informed and willing seller under no compulsion to sell, and in such determination, costs of removal from the location of current use shall not be a deduction from such value. If Lessee desires to exercise either option, it shall give Lessor irrevocable written notice of its intention to exercise such option at least sixty (60) days (and not more than 180 days) before the expiration of such Schedule Term. In the event that Lessee exercises the purchase option described herein, upon payment by Lessee to Lessor of the purchase price for the Equipment, together will all Rent Payments and any other amounts owing to Lessor hereunder, Lessor shall transfer to Lessee without any representation or warranty of any kind, express or implied, title to such Equipment. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF LESSEE FAILS TO NOTIFY LESSOR OF ITS INTENT WITH RESPECT TO THE EXERCISE OF THE OPTIONS DESCRIBED IN THIS SECTION 13 WITHIN THE TIME FRAMES CONTEMPLATED HEREIN, THE INITIAL SCHEDULE TERM SHALL BE TERMINATED ON THE DATE AS STATED IN THE SCHEDULE. (b) The Equipment shall be delivered to and thereafter kept at the location specified in the Schedule and shall not be removed therefrom without Lessor's prior written consent and in accordance with Section 11 of this MLA. Upon the expiration, early termination as provided herein, or upon final termination of the Schedule, upon at least ninety (90) days prior written notice to Lessor, Lessee at its cost and expense, shall immediately disconnect, properly package for transportation and return all (not part) of the Equipment (including, without limitation, all service records and user manuals), freight prepaid, to Lessor in good repair, working order, with unblemished physical appearance and with no defects which affect the operation or performance of the Equipment ( "Return Condition "), reasonable wear and tear excepted. Lessee shall, at Lessor's request, affix to the Equipment, tags, decals or plates furnished by Lessor indicating Lessor's ownership and Lessee shall not permit their removal or concealment. Lessee shall return the Equipment to Lessor at a location specified by Lessor, provided, however, such location shall be within the United States no farther than 500 miles from the original Lessee delivery location, DIR Contract # DIR -TSO -3041 Page 7 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 unless otherwise agreed to on the applicable Schedule. If the Equipment is not in Return Condition, Lessee shall remain liable for all reasonable costs required to restore the Equipment to Return Condition. Lessee shall arrange and pay for the de- installation and packing of the Equipment and the de- installation shall be performed by manufacturer - certified technicians, approved by Lessor and the Lessor shall have the right to supervise and direct the preparation of the Equipment for return. IF, UPON TERMINATION OR EXPIRATION OF THE SCHEDULE FOR ANY REASON, LESSEE FAILS OR REFUSES FORTHWITH TO RETURN AND DELIVER THE EQUIPMENT TO LESSOR, LESSEE SHALL REMAIN LIABLE FOR ANY RENT PAYMENTS ACCRUED AND UNPAID WITH RESPECT TO ALL OF THE EQUIPMENT ON THE SCHEDULE AND SHALL PAY RENT UP TO THE DATE THAT THE EQUIPMENT IS RETURNED TO THE ADDRESS SPECIFIED BY LESSOR. Notwithstanding the foregoing, Lessor shall have the right, without notice or demand, to enter Lessee's premises or any other premises where the Equipment may be found and to take possession of and to remove the Equipment, at Lessee's sole cost and expense, without legal process. Lessee understands that it may have a right under law to notice and a hearing prior to repossession of the Equipment. As an inducement to Lessor to enter into a transaction, but only to the extent that Lessee, if a state agency, has statutory authority to do so, Lessee hereby expressly waives all rights conferred by existing law to notice and a hearing prior to such repossession by Lessor or any officer authorized by law to effect repossession and hereby releases Lessor from all liability in connection with such repossession. Without waiving the doctrines of sovereign immunity and immunity from suit and to the extent authorized by the constitution and laws of the State of Texas, Lessee's obligation to return Equipment may, at Lessor's option, be specifically enforced by Lessor. 14. Quiet Enioyment. During the Schedule Term, Lessor shall not interfere with Lessee's quiet enjoyment and use of the Equipment provided that an Event of Default (as hereinafter defined in Section 23 of the MLA) has not occurred. 15. Warranties. Lessor and Lessee acknowledge that manufacturer Equipment warranties, if any, inure to the benefit of the Lessee. Lessee agrees to pursue any warranty claim directly against such manufacturer of the Equipment and shall not pursue any such claim against Lessor. Lessee shall continue to pay Lessor all amounts payable under any Schedule under any and all circumstances. 16. No Warranties. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OR LICENSOR OF THE EQUIPMENT. LESSEE AGREES THAT LESSOR HAS NOT MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, CONDITION, OR QUALITY OF THE EQUIPMENT OR ANY UNIT THEREOF. LESSEE SPECIFICALLY WAIVES ALL RIGHT TO MAKE CLAIM AGAINST LESSOR FOR BREACH OF ANY EQUIPMENT WARRANTY OF ANY KIND WHATSOEVER; AND WITH RESPECT TO LESSOR, LESSEE LEASES EQUIPMENT "AS IS ". LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIR Contract # DIR -TSO -3041 Page 8 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, OR BY THE USE OR MAINTENANCE THEREOF, OR BY THE REPAIRS, SERVICE OR ADJUSTMENT THERETO OR ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEROF, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATESOEVER AND HOWSOEVER CAUSED WITHOUT IN ANY WAY IMPLYING THAT ANY SUCH WARRANTY EXISTS AND WITHOUT INCREASING ITS LIABILITY HEREUNDER, TO ASSIGN TO LESSEE UPON LESSEE'S REQUEST THEREFOR ANY WARRANTY OF A MANUFACTURER OR LICENSOR OR SELLER RELATING TO THE EQUIPMENT THAT MAY HAVE BEEN GIVEN TO LESSOR. 17. Indemnification. (a) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent permitted by the laws and Constitution of the State of Texas, Lessee shall indemnify, protect, save and hold harmless Lessor, its agents, servants and successors from and against all losses, damages, injuries, claims, demands and expenses, including legal expenses and attorney's fees, of whatsoever nature, arising out of the use, misuse, condition, repair, storage, return or operation (including, but not limited to, latent and other defects, whether or not discoverable by it) of any unit of Equipment, regardless of where, how and by whom operated, and arising out of negligence (excluding the gross negligence or willful misconduct of Lessor). Lessee is liable for the expenses of the defense or the settlement of any suit or suits or other legal proceedings brought to enforce any such losses, damages, injuries, claims, demands, and expenses and shall pay all judgments entered in any such suit or suits or other legal proceedings. The indemnities and assumptions of liabilities and obligations herein provided for shall continue in full force and effect notwithstanding the termination of the MLA or a Schedule whether by expiration of time, by operation of law or otherwise. With respect to Lessor, Lessee is an independent contractor, and nothing contained herein authorizes Lessee or any other person to operate the Equipment so as to impose or incur any liability or obligation for or on behalf of Lessor. (b) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent permitted by the laws and Constitution of the State of Texas, Lessee and DIR individually and collectively assume all risks and liabilities with respect to any claim made by any third party that the lease arrangements herein are not authorized by law. Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent permitted by the laws and Constitution of the State of Texas, Lessee and DIR agree to indemnify, save and hold harmless Lessor from any and all such claims and all expenses incurred in connection with such claims or to defend against such claims, including without limitation any judgments by a court of competent jurisdiction or settlement or compromise with such claimant. (c) Lessor is the owner of the Equipment and has title to the Equipment. If any other person attempts to claim ownership of the Equipment by asserting that claim against Lessee or through Lessee, Lessee agrees, at its expense, to protect and defend Lessor's title'to the Equipment. Lessee further agrees that it will at all times keep the Equipment free from any legal process, encumbrance or lien whatsoever, and Lessee shall give Lessor immediate notice if any legal process, encumbrance or lien is asserted or made against the Equipment. DIR Contract # DIR -TSO -3041 Page 9 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 18. Risk of Loss. Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire risk of loss or damage in respect to any Equipment, whether partial or complete, from any cause whatsoever. In the event of loss, theft, destruction or damage of any kind to any item of Equipment, or if any Equipment is lost stolen, or taken by governmental action for a stated period extending beyond the Term of any Schedule (an "Event of Loss "), Lessee shall promptly notify Lessor. Lessee shall, at its option: (a) immediately place the affected Equipment in good condition and working order, (b) replace the affected Equipment with identical equipment of at least equal value, in good condition and repair, and transfer clear title thereto to Lessor, or (c) to the extent permitted by law, pay to Lessor, within thirty (30) days of the Event of Loss, an amount equal to the Stipulated Loss Value ( "SLV" as hereafter defined) for such affected Equipment, plus any other unpaid amounts then due under the Schedule. If an Event of Loss occurs as to part of the Equipment for which the SLV is paid, a prorated amount of each Rent Payment shall abate from the date the SLV payment is received by Lessor. The SLV shall be an amount equal to the sum of all future Rent Payments from the last Rent Payment date to the end of the Schedule Term with such Rent Payments discounted to present value at the like -term Treasury Bill rate for the remaining Schedule Term in effect on the date of such Event of Loss, or if such rate is not permitted by law, then at the lowest permitted rate. In the event of a governmental taking of Equipment for an indefinite period or for a stated period, which does not extend beyond the Schedule Term, all obligations of the Lessee with respect to such Equipment (including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor shall pay to Lessee all sums received by Lessor from the government by reason of such taking. 19. Insurance. At its expense, Lessee shall keep the Equipment insured against all risks of loss and damage with companies acceptable to Lessor for an amount equal to the original cost of the Equipment, with Lessor or its assign(s) named as a loss payee. Lessee shall also maintain comprehensive general liability insurance, with Lessor or its assign(s) named as an additional insured. Lessee shall be liable for any loss not covered by insurance. All said insurance shall be in form and amount satisfactory to Lessor. Lessee shall pay the premiums therefor and deliver to Lessor or its assign(s) the certificates of insurance or duplicates thereof or other evidence satisfactory to Lessor or its assign(s) of such insurance coverage. Evidence of such insurance coverage shall be furnished no later than the Schedule Commencement Date of each Schedule and from time to time as Lessor or its assign(s) may request. Lessee hereby irrevocably appoints Lessor as Lessee's attorney -in -fact to make claim for, receive payment of, and execute and endorse all documents, checks or drafts received in payment for loss or damage under any said insurance policy. Lessee may self - insure with respect to the required coverage. Further, Lessees that are defined as state agencies in accordance with Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003) and those purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, may self - insure their obligations in this section. DIR Contract # DIR -TSO -3041 Page 10 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 20. Representations and Warranties of Lessee. Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an opinion of counsel to the effect that, as of the time of execution of the MLA and each Schedule between Lessor and Lessee: (a) Lessee is either a Texas state agency or Texas local government, as defined in Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003) or a state agency purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. Lessee has made an independent legal and management determination to enter into this transaction; (b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and constitutes a valid, legal and binding agreement of Lessee, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or instrumentality with respect to the entering into or performance by Lessee of any Schedule between Lessor and Lessee; (d) The entering into and performance of any Schedule between Lessor and Lessee, the MLA or any Schedule will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon assets of the Lessee or on the Equipment leased under any Schedule between Lessor and Lessee pursuant to any instrument to which the Lessee is a party or by which it or its assets may be bound; (e) To the best of Lessee's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Lessee, which if determined adversely to Lessee will have a material adverse effect on the ability of Lessee to fulfill its obligations under the MLA or any Schedule between Lessor and Lessee; (f) The use of the Equipment is essential to Lessee's proper, efficient and economic operation, and Lessee will sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee hereto written certification to that effect; and (g) Lessee represents and warrants that (i) It has authority to enter into any Schedule under this MLA, (ii) the persons executing a Schedule have been duly authorized to execute the Schedule on Lessee's behalf, (iii) all information supplied to Lessor is true and correct, including all credit and financial information and (iv) it is able to meet all its financial obligations, including the Rent Payments hereunder. 21. Representation and Warranties of DIR. DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of counsel to the effect that, as of the time of execution of the MLA: DIR Contract # DIR -TSO -3041 Page 11 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 (a) DIR is a State agency as defined in Section 2251.001, Texas Government Code. DIR has not provided the Lessee or the Lessor with any legal or management advice regarding the MLA or any Schedule executed pursuant thereto; (b) This MLA has been duly authorized, executed and delivered by DIR and constitutes a valid, legal and binding Agreement of DIR, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or governmental authority or instrumentality with respect to the entering into or performance by DIR of this MLA; (d) The entering into and performance of the MLA does not violate any judgment, order, law or regulation applicable to DIR or result in any breach of, constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the Equipment pursuant to any instrument to which DIR is a party or by which it or its assets may be bound; (e) To the best of DIR's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting DIR, which if determined adversely to DIR will have a material adverse effect on the ability of DIR to fulfill its obligations under the MLA; (f) DIR is authorized to charge and collect the administrative fee as set forth within Section 5 of the Contract; (g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or otherwise violate Texas law; and (h) DIR is a government agency subject to the Texas Public Information Act. Lessor acknowledges that DIR will comply with the Public Information Act, and with all opinions of the Texas Attorney Generals' office concerning this Act. 22. Representations and Warranties of Lessor. (a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and any of its political subdivisions; (b) The MLA and each Schedule executed in conjunction to this MLA have been duly authorized, executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor, enforceable with respect to the obligations of Lessor herein in accordance with their terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or instrumentality with respect to the entering into or performance by Lessor of this MLA or any Schedule; (d) The entering into and performance of the MLA or any Schedule will not violate any judgment, order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under, or result DIR Contract # DIR -TSO -3041 Page 12 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 in the creation of any lien, charge, security interest or other encumbrance upon the assets of the Lessor, including Equipment leased under the MLA and Schedules thereto, pursuant to any instrument to which the Lessor is a party or by which it or its assets may be bound; and (e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Lessor, which if determined adversely to Lessor will have a material adverse effect on the ability of Lessor to fulfill its obligations under the MLA or any Schedule. 23. Default. Lessee shall be in default under a Schedule upon the occurrence of any one or more of the following events (each an "Event of Default "): (a) nonpayment or incomplete payment by Lessee of Rent or any other sum payable; (b) nonpayment or incomplete payment by Lessee of Rent or any other sum payable on its due date; (c) failure by Lessee to perform or observe any other term, covenant or condition of this MLA, any Schedule, or any applicable software license agreement, which is not cured within ten (10) days after notice thereof from Lessor; (d) insolvency by Lessee; (e) Lessee's filing of any proceedings commencing bankruptcy or the filing of any involuntary petition against Lessee or the appointment of any receiver not dismissed within sixty (60) days from the date of said filing or appointment; (f) subjection of a substantial part of Lessee's property or any part of the Equipment to any levy, seizure, assignment or sale for or by any creditor or governmental agency; or (g) any representation or warranty made by Lessee in this MLA, any Schedule or in any document furnished by Lessee to Lessor in connection therewith or with the acquisition or use of the Equipment being or becoming untrue in any material respect. 24. Remedies. (a) Upon the occurrence of an "Event of Default" and at any time thereafter Lessor may, in its sole discretion, do any one or more of the following: (i) After giving fifteen (15) days prior written notice to Lessee of default, during which time Lessee shall have the opportunity to cure such default, terminate any or all Schedules executed by Lessor and the defaulting Lessee; (ii) without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessor may proceed by appropriate court action to enforce the performance of the terms of the Schedule and /or recover damages, including all of Lessor's economic loss for the breach thereof; (iii) whether or not the Schedule is terminated, upon notice to Lessee, take possession of the Equipment wherever located, without demand, liability, court order or other process of law, and for such purposes Lessee, to the extent authorized by Texas law, hereby authorizes Lessor, its assigns or the agents of either to enter upon the premises where such Equipment is located or cause Lessee, and Lessee hereby agrees, to return such Equipment to Lessor in accordance with the requirements of Section 13 of the MLA; (iv) by notice to Lessee, and to the extent permitted by law, declare immediately due and payable and recover from Lessee, as liquidated damages and as a remedy, the sum of (a) the present value of the Rent owed from the earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee until the end of the Schedule Term plus, if the Equipment is not returned to or repossessed by Lessor, the present value of the estimated in -place fair market value of the Equipment at the end of the Schedule Term as determined by Lessor, each discounted at a rate equal to the rate used by Lessor for business opportunity analysis; (b) all Rent and other amounts due and payable on or before the earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee; and (c) without DIR Contract # DIR -TSO -3041 Page 13 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, costs, fees (including all attorneys' fees and court costs) and expenses associated with collecting said sums; and (d) interest on (a) and (b) from the date of default at 1 %2% per month or portion thereof (or the highest rate allowable by law, if less) and, on (c) from the date Lessor incurs such fees, costs or expenses. (b) Upon return or repossession of the Equipment, Lessor may, if it so decides in its sole discretion, upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such Equipment, in such manner and upon such terms as Lessor may determine in its sole discretion, so long as such manner and terms are commercially reasonable. Upon disposition of the Equipment, Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee. Proceeds upon sale of the Equipment shall be the sale price paid to Lessor less the Stipulated Loss Value in effect as of the date of default. Proceeds upon a re -lease of the Equipment shall be all rents to be received for a term not to exceed the remaining Schedule Term, discounted to present value as of the commencement date of the re -lease at the Lessor's current applicable debt rate. Without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, "Net Proceeds" shall be the Proceeds of sale or re- lease as determined above, less all costs and expenses incurred by Lessor in the recovery, storage and repair of the Equipment, in the remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any court costs and attorney's fees and interest on the foregoing at eighteen percent (18 %) per annum or the highest rate allowable by law, if less, calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee exceeds the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained by Lessor. (c) No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon an Event or Default shall relieve Lessee from any of its obligations hereunder. No remedy referred to in this Section is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. (d) Neither DIR nor non - defaulting Lessees shall be deemed in default under the MLA or Schedules because of the default of a particular Lessee. Lessor's remedies under this Section 24 shall not extend to DIR and those non - defaulting Lessees. 25. Notices and Waivers. All notices relating to this MLA shall be delivered to DIR or the Lessor as specified within Section 6 of the Contract, or to another representative and address subsequently specified in writing by the appropriate parties hereto. All notices relating to a Schedule shall be delivered in person to an officer of the Lessor or Lessee or shall be mailed certified or registered to Lessor or Lessee at its respective address shown on the Schedule or to another address subsequently specified in writing by the appropriate parties thereof. DIR, Lessee, and Lessor intend and agree that a photocopy or facsimile of this MLA or a Schedule and all related documents, including but not limited to the Acceptance Certificate, with their signatures thereon shall be treated as originals, and shall be deemed to be as binding, valid, genuine, and authentic as an original signature document for all purposes. This MLA and those Schedules in conjunction hereof are a "Finance Lease" as defined in Article 2A of the Uniform Commercial Code ( "UCC "). A waiver of a specific Default DIR Contract # DIR -TSO -3041 Page 14 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 shall not be a waiver of any other or subsequent Default. No waiver of any provision of this MLA or a provision of a Schedule shall be a waiver of any other provision or matter, and all such waivers shall be in writing and executed by an officer of the Lessor. No failure on the part of Lessor to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof. 26. Assignment by Lessor; Assignment or Sublease by Lessee. (a) Lessor may (i) assign all or a portion of Lessor's right, title and interest in this MLA and /or any Schedule; (ii) grant a security interest in the right, title and interest of Lessor in the MLA, any Schedule and /or any Equipment; and /or (iii) sell or transfer its title and interest as owner of the Equipment and /or as Lessor under any Schedule; and DIR and each Lessee leasing Equipment under the MLA understand and agree that Lessor's assigns may each do the same (hereunder collectively "Assignment "). All such Assignments shall be subject to each Lessee's rights under the Schedule(s) executed between it and Lessor and to DIR's rights under the MLA. Each Lessee leasing Equipment through Schedules under this MLA and DIR hereby consent to such Assignments and agree to execute and deliver promptly such acknowledgements, Opinions of Counsel and other instruments reasonably requested to effect such Assignment. Each Lessee leasing Equipment through Schedules under this MLA and DIR acknowledge that the assigns do not assume Lessor's obligations hereunder and agree to make all payments owed to the assigns without abatement and not to assert against the assigns any claim, defense, setoff or counterclaim which DIR or the Lessee(s) may possess against the Lessor or any other party for any other reason. Lessor shall remain liable for performance under the MLA and any Schedule(s) executed hereunder to the extent Lessor's assigns do not perform Lessor's obligations under the MLA and Schedule(s) executed hereunder. Upon any such Assignment, all references to Lessor shall also include all such assigns, whether specific reference thereto is otherwise made herein. (b) LESSEE WILL NOT SELL, ASSIGN, SUBLET, PLEDGE OR OTHERWISE ENCUMBER, OR PERMIT A LIEN TO EXIST ON OR AGAINST ANY INTEREST IN THIS LEASE, OR THE EQUIPMENT, OR REMOVE THE EQUIPMENT FROM ITS LOCATION REFERRED TO ON THE SCHEDULE, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT EXCEPT AS PROVIDED IN SECTION 11 OF THIS MLA. LESSOR MAY ASSIGN ITS INTEREST IN THIS LEASE AND SELL OR GRANT A SECURITY INTEREST IN ALL OR ANY PART OF THE EQUIPMENT WITHOUT LESSEE'S CONSENT. LESSEES THAT ARE STATE AGENCIES, WITHOUT WAIVING THE DOCTRINE OF SOVEREIGN IMMUNITY AND IMMUNITY FROM SUIT, AND ONLY AS MAY BE AUTHORIZED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS, AGREE THAT IN ANY ACTION BROUGHT BY AN ASSIGNEE AGAINST LESSEE TO ENFORCE LESSOR'S RIGHTS HEREUNDER, LESSEE WILL NOT ASSERT AGAINST SUCH ASSIGNEE AND EXPRESSLY WAIVES AS AGAINST ANY ASSIGNEE, ANY BREACH OR DEFAULT ON THE PART OF LESSOR HEREUNDER OR ANY OTHER DEFENSE, CLAIM OR SET -OFF WHICH LESSEE MAY HAVE AGAINST LESSOR EITHER HEREUNDER OR OTHERWISE. NO SUCH ASSIGNEE SHALL BE OBLIGATED TO PERFORM ANY OBLIGATION, TERM OR CONDITION REQUIRED TO BE PERFORMED BY LESSOR HEREUNDER. Without the prior written consent of Lessor, DIR shall not assign, sublease, transfer, pledge or hypothecate the Master Lease Agreement; DIR Contract # DIR -TSO -3041 Page 15 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 provided, however, that no such prior written consent from Lessor is necessary in the event of a legislative mandate to transfer the contract to another state agency. 27. Delivery of Related Documents. For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor: (a) Certificate of Acceptance; (b) Opinion of Counsel; (c) proof of self - insurance acceptable to Lessor; (d) Financial Statements; (e) Incumbency Certificate; and (f) Other documents as reasonably required by Lessor. 28. Lessee's Waivers. To the extent permitted by applicable law, Lessee hereby waives the following rights and remedies conferred upon Lessee by the Uniform Commercial Code: to (i) cancel any Schedule under the MLA; (ii) repudiate any Schedule; (iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover damages from Lessor for any breach of warranty by the manufacturer; (vi) claim a security interest in the Equipment in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed damages resulting from Lessor's default, if any, under any Schedule; (viii) accept partial delivery of the Equipment; (ix) "cover" by making any purchase or lease of or contract to purchase or lease equipment in substitution for the Equipment due from Lessor; (x) recover any special, punitive, incidental or consequential damages, for any reason whatsoever. Lessee agrees that any delay or failure to enforce Lessor's rights under this MLA or a Schedule does not prevent Lessor from enforcing any rights at a later time. 29. Security Interest and UCC Filings. To secure payments hereunder, Lessor reserves and Lessee hereby grants to Lessor a continuing security interest in the Equipment and any and all additions, replacements, substitutions, and repairs thereof. When all of the Lessee's obligations under this MLA and respective Schedules have been fully paid and satisfied, Lessor's security interest shall terminate. Nothing contained herein shall in any way diminish Lessor's right, title, or interest in or to the Equipment. Lessor and Lessee agree that a reproduction of this MLA and /or any associated Schedule may be filed as a financing statement and shall be sufficient as a financing statement under the Uniform Commercial Code ( "UCC "). Lessee hereby appoints Lessor, its agents, successors or assigns its true and lawful attorney -in -fact for the limited purpose of executing and filing on behalf of Lessee any and all UCC Financing Statements which in Lessor's sole discretion are necessary or proper to secure Lessor's interest in the Equipment in all applicable jurisdictions. Lessee shall execute or obtain and deliver to Lessor, upon Lessor's request, such instruments, financing statements and assurances, as Lessor deems necessary or advisable for the protection or perfection of this Lease and Lessor's rights hereunder and will pay all costs incident thereto. 30. Miscellaneous. (a) Applicable Law and Venue. The MLA and each Schedule SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. In the event of a dispute between the parties, exclusive venue for any legal action shall be in the state court where Lessee has its principal office or where the Equipment is located, with the following exception: if a DIR Contract # DIR -TSO -3041 Page 16 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Lessee is designated as a State agency as defined in Section 2054.003, Texas Government Code, including a university system or institution of higher education, and those purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, then exclusive venue shall be in the state district court of Travis County, Texas. (b) Counterpart. Only original counterpart No. 1 of each Schedule shall be deemed to be an "Original" for chattel paper purposes under the Uniform Commercial Code. Any and all other counterparts shall be deemed to be a "Copy ". NO SECURITY INTEREST IN THIS MLA, IN ANY SCHEDULE, OR IN ANY OF THE EQUIPMENT MAY BE CREATED, TRANSFERRED, ASSIGNED OR PERFECTED BY THE TRANSFER AND POSSESSION OF THIS MLA ALONE OR OF ANY "COPY" OF THE SCHEDULE, BUT RATHER SOLELY BY THE TRANSFER AND POSSESSION OF THE "ORIGINAL" COUNTERPART OF THE SCHEDULE INCORPORATING THIS MLA BY REFERENCE. (c) Suspension of Obligations of Lessor. Prior to delivery of any Equipment, the obligations of Lessor hereunder shall be suspended to the extent that it is hindered or prevented from performing because of causes beyond its control. (d) Severability. In the event of any provision of this MLA or any Schedule shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the parties hereto agree that such provision shall be ineffective without invalidating the remaining provisions thereof. (e) Entire Agreement. Lessor and Lessee acknowledge that there are no agreements or understanding, written or oral, between them with respect to the Equipment, other than as set forth in this MLA and in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge that this MLA and each Schedule to which Lessee is a party contain the entire agreement between Lessor and Lessee and supersedes all previous discussions and terms and conditions of any purchase orders issued by Lessee. DIR and Lessor acknowledge that there are no agreements or understandings, written or oral, between them other than as set forth in this MLA and Contract Number DIR -TSO- 3041 and that both contain the entire agreement between them. Neither this MLA nor any Schedule may be altered, modified, terminated, or discharged except by a writing signed by the party against whom enforcement of such action is sought. (f) Headers. The descriptive headings hereof do not constitute a part of any Schedule and no inferences shall be drawn therefrom. (g) Language context. Whenever the context of this MLA requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural, and whenever the word Lessor is used herein, it shall include all assignees of Lessor. (h) Lessor Certifications. Lessor certifies that: (i) it has not given, offered to give, and does not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this MLA and /or any Schedules executed hereunder; DIR Contract # DIR -TSO -3041 Page 17 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 (ii) it is not currently delinquent in the payment of any franchise tax owed the State of Texas and is not ineligible to receive payment under Section 231.006, Texas Family Code and acknowledges this MLA may be terminated and payment withheld if this certification is inaccurate; (iii) neither it, nor anyone acting for it, has violated the antitrust laws of the United States or the State of Texas, nor communicated directly or indirectly to any competitor or any other person engaged in such line of business for the purpose of obtaining an unfair price advantage; (iv) it has not received payment from DIR, Lessee or any of their employees for participating in the preparation of this MLA and the Schedule(s) hereunder; (v) during the term of this MLA, it will not discriminate unlawfully against any employee or applicant and that, upon request it will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision making authority, (vi) under Section 2155.004, Texas Government Code, the Lessor certifies that the individual or business entity named in this MLA is not ineligible to receive the specified MLA and acknowledges that this MLA may be terminated and payment withheld if this certification is inaccurate; (vii) to the best of their knowledge and belief, there are no suits or proceedings pending or threatened against or affecting them, which if determined adversely to them will have a material adverse effect on the ability to fulfill their obligations under the MLA; (viii) Lessor and its principals are not suspended or debarred from doing business with the federal government as listed in the System for Award Management (SAM) maintained by the General Services Administration; (ix) as of the effective date of the MLA, are not listed in the prohibited vendors list authorized by Executive Order #13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism ", published by the United States Department of the Treasury, Office of Foreign Assets Control; (x) to the extent applicable to this scope of this MLA, Lessor hereby certifies that it is in compliance with Subchapter Y, Chapter 361, Health and Safety Code related to the Computer Equipment Recycling Program and its rules, 30 TAC Chapter 328; (xi) Lessor agrees that any payments due under this MLA will be applied towards any debt, including but not limited to delinquent taxes and child support that is owed to the State of Texas; DIR Contract # DIR -TSO -3041 Page 18 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 (xii) Vendor certifies that they are in compliance Section 669.003, Texas Government Code, relating to contracting with executive head of a state agency; if Section 669.003 applies, Vendor will complete the following information: Name of Former Executive; Name of State Agency; Position with Vendor and Date of Employment with Vendor. (xiii) Vendor certifies for itself and its subcontractors that it has identified all current or former, within the last five years, employees of the State of Texas assigned to work on the DIR Contract 20% or more of their time and has disclosed them to DIR and has disclosed or does not employ any relative of a current or former state employee within two degrees of consanguinity, and, if these facts change during the course of the Contract, Vendor certifies it shall disclose for itself and on behalf of subcontractors the name and other pertinent information about the employment of current and former employees and their relatives within two degrees of consanguinity; (xiv) Lessor represents and warrants that the provision of goods and services or other performance under the MLA will not constitute an actual or potential conflict of interest and certifies that it will not reasonably create the appearance of impropriety, and, if these facts change during the course of the MLA, Lessor certifies it shall disclose for itself and on behalf of subcontractors the actual or potential conflict of interest and any circumstances which create the appearance of impropriety; (xv) Lessor represents and warrants that the Lessee's payment to Lessor and Lessor's receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008, Texas Government Code; (xvi) Under Section 2155.006, Government Code, Lessor certifies that the individual or business entity in this MLA is not ineligible to receive the specified MLA and acknowledges that this MLA may be terminated and payment withheld if this certification is inaccurate. In addition, Lessor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of the MLA; and (xviii) Lessor certifies that it has complied with the Section 556.0055, Texas Government Code, restriction on lobbying expenditures.. In addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract. During the term of the MLA, Lessor shall, for itself and on behalf of its subcontractors, promptly disclose to DIR all changes that occur to the foregoing certifications, representations and warranties. Lessor covenants to fully cooperate in the development and execution of resulting documentation necessary to maintain an accurate record of the certifications, representations and warranties (i) Dispute Resolution. The following paragraph applies only to Lessees designated as a State agency as defined in Section 2054.O03,'Texas Government Code, including a university system or institution of higher education, and those purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. Pursuant to Chapter 2260 of the Texas Government Code, any dispute arising under a contract for goods and services for which this chapter applies must be resolved under the provisions of this DIR Contract # DIR -TSO -3041 Page 19 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 chapter. To the extent that Chapter 2260 of the Texas Government Code, as it may be amended from time to time ( "Chapter 2260 "), is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260, and rules promulgated there under shall be used by the Lessee and Lessor to attempt to resolve any claim for breach of agreement made by Lessor. 0) Sovereign Immunity. Nothing herein shall be construed to waive the State's sovereign immunity. 31. Amendments. The terms and conditions of this MLA may be amended only by written instrument executed by the Lessor and DIR. DIR Contract # DIR -TSO -3041 Page 20 of 20 Appendix D 02/06/2015 DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 0.' ! 1 1 rommil 1 110 T M1 M1 � PIT DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 Form W'9 Request for Taxpayer Give Form to the (Rev. December2014) Identification Number and Certification requester. Do not Department of the Treasury send to the IRS. internal Revenue Service I Name (as shown on your incorro tax rotom). Namur Is required on this line; do not leave this line blank. Ricoh USA, Inc. N N f0 d d o2 k tE .9 fn m ra 07 name, if did'lorerot from above 3 Check appropriate box for federal tax classification; check only one of the following seven boxes: 4 Exemptions (codes apply only to certain entitles, not Individuals; see ❑ Indivlduallsole proprietor or [f✓ C Corporation [_-] S Corporellon E] Partnership ❑ Trust/estate Instructions on page 3): single- member LLC Exempt payee code (f any) 5 E] Limited liability company. Enter the tax classification (C =C corporation, S =S corporation, P =partnership) 10 -� 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 Of any) rKS Po eceaeAtlas m�PnP' aPrseP3 ❑ Other (sae instructions) ► Me us) apt. or PO Box 650016 Dallas, TX 75265.0016 Taxpayer Identification Nurn emr !N Requester's name 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. i Social security number m -M -LU or Employer Identification member 21311 -10 1 3 1 3 1 4 1 J01 0 c�rt'j`f #cfaticl 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 (allure 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 3. / / ere SYgaaalureof f d,•wr ..t Here U.S. person i, w 4/ I Date ► 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.lrs.gov1Av9, 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 laxpayer ldentlflcatlon number (TIN) which may ire your social secut4y utumbe)r (SSN), IndIvlduavl taxpayer Identification number OTIN), aalopfdon laxpayer kienWIcallon nurnbor (ATIN), or ompdoyer kfantifi tdon number(RN), to report on an InforrraalYon return the amount pald to you, or other nrnount reportable on an Irurorrnation rslruan. Examplas of information returns inHode, bot are not iirniterd to, the toYfowlng: • Form 1099 -INT (Interest earned or paid) • Form 1099 -DIV (dividends, including those from stocks or mutual funds) • Form 1099 -MISO (various types of Income, prizes, awards, or gross proceeds) • Form 1099 -8 (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) • Form 1098 (home mortgage intbresl), I W8 -E (shr dertl loan Interest), 1098 -1f (tuition) * Form 1099 -0 (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: I. Certify that the °f'IN you are giving Is correct (or you are wafting for a number to ba Issued), 2. Cortdiy 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. tra do or business Is not subject to the withhoklim lktx on foralgn parinorsr" sharo of of eelively connpoled Income, and 4. Certify that FATCA coda(s) entered on lhis form flf any) IndloWng that you are exempt from the FATCA reporting, is correct. See Mat is FATCA reporting? on page 2 for further information. Cat. No. 10231X Form W -9 (Rev. 12 -2014) DocuSign Envelope ID: 4El3A215-1137-4FFB-AC75-FlB3290ED41C EXHIBIT 4 "I'll" ............ - .............. ....... 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. Check this box if you are ruling an update to a previously riled questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7" business day after the date the ori inallyfil SL uestio qu�esfi nnaire becomes incomplete or inaccurate r _,j.TNamc 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? F] yes ONo B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes El No C Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 0 Yes 0 No D. Describe each affiliation or business relationship, F1I have no Conflict of Interest to disclose. --------------------- --------- - ---- ------ -------- .... . ...... . . . ............ ..................... .. ........ . ........ 08-31-15 Signature of person doing business with the governmental entity Date --- - -- - --------------- . . . . . . ........................... . . . . . . .......... . ...... . . . . . . ..................... . . . ... . ... .... . . . . ............ ....................... — DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 A t?/? �OAT. (MM /DDIYYYY) CERTIFICATE OF LIABILITY INSURANCE page 1 of 1 /31/2015 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(ies)must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT P Willie of New York, Inc. ONE FAX c/o 26 Century Blvd. �. �.XT)• . .... P. O. Box 305191 f - Ad1�Q, �e t .tt-%FJ "W' , ,. .B « /C'C 1T3 Nashville, TN 37230 -5191 __ INSURER(S)AFFORDINGCOVERAGE NAIC# IN;URf:lt'A; Travelers Property Casualty Company of Am 25674 -004 INSURED INSURERB:Tokio Marine America Insurance Company 10945 -001 Ricoh Americas Holdings, Inc.. ....... Ricoh USA, Inc. INSURERC: ........... .... ... ...... ..... ........ ......... . 70 Valley Stream Parkway Malvern, PA 19355 INSURERD: _ INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 23507268 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. INS, TYPEOFINSURANCE �DDL SUB . POLICYNUMBER WMMDEFF POLICYEW ) � LIMITS A 'X COMMER.CIALGENERALLYABILITY 3C2JGLSA1193R908TIL15 6/1/2015 16/1/2016 EACH OCCURRENCE $ 1,000,.000,,.,m. 1,.,iLLIai:Nl "EI "r ry OCCUR ��� ,inurexce) $ 300,..000 l`LAIIaYYam'MfiAOL X... MED EXP (An one person) $ j, 0 19 0 0 .......... ... PERSONAL &ADVINJURY„ $.....- .....11000,.,_000 G +L "N'LAGGREGATE LIMITAPPLIESPER: GENERAL AGGREGATE $ 2.1009 000 POLICY 0 PRO LOC PRODUCTS- COMP /OPAGG $ 2,, 000„,000 JECT X .^ 01HE.R'r $ A AUTOMOBILE LIABILITY 3IWJCAP1193RB53TIL15 6/1/2015 6/1/2016 cC:dMRgl^#Y�DSIYDt.IELIMG'6' 1 000, 000 (Et�aat,dertt) $ r • ANY AUTO BODILY INJURY(Per person) $ •X..... ALLOWNED ........ -'a( HEoU1,Erk BODILYINJURY(PeraccidenI) $ ,__ AUTOS AUTOS ................. FN-OWNED i:iROa'(-RTY X HIRED AUTOS X $ Tt3S (Per ar i it e!ni B X UMBRELLALIAB X OCCUR CU640216707 6/1/2015 6/1/2016 EACHOCCURRENCE $ 1,_000,_000 .......... EXCESS LIAR CLAIMS-MADE AGGREGATE $ 1,,000,000 X ETENTION ..e DED R$ 10, 000 $ WORKERS COMPENSATION Y/N AND EMPLOYERS'LIABILITY STAT.LITE... _ -f._ER ...... .......... ANY PROPRIETOR/PARTNER/EXECUTIVE N/A E.L. EACH ACCIDENT_ $ ❑ OFFICERIMEMBER EXCLUDED? Mandatory in NH) E.L.DISEASE -EA EMPLOYEE $ fyyes, describe under DESCRIPTIONOF OPERATIONS below E..L.DBEASE- POLICY LIMIT $ _. .. _..... .mm. ......... DESCRIPTION OF OPERATIONS I LOCATIONS (VEHICLES (ACORD 10,1, AddRonal Renn+rh5 Schedule, may be tattadiod if morn space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Denton A1JTI1£)N'kI'.'- DRY "JES'ENT Attn: Elton Brock 901B Texas Street Denton, TX 76209 Co11:4757848 Tp1:1957925 Cert:23507268 C 88- '2014ACORDCORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered mark-41101f ACORD DocuSign Envelope ID: 4El3A215-1137-4FFB-AC75-FlB3290ED41C EXHIBIT 4 --­li L - CERTIFICATE OF LIABILITY INSURANCE DATE(MM/D0D1N5 4 w?Y 06/31/2 YYY) --fHIS"CER'I'IFICATE 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. IMPORT ANT: Ili (tip certificate holder is an ADDITIONAL INSURED, the poilcy(�es) must be endorsed. It 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 endorse m e I it(s). Aon Risk Services Northeast, Inc. New York NY Office 199 Water Street E-MAJIL New York NY 10038-3551 USA ADDRESS: INSURED INSURER A: Ricoh Americas Holdincis, Inc INSURER B: Ricoh USA, Inc. (f/k/a IKON office solutions, Inc.) INSURER C: 70 Valley Stream Parkway INSURER D: Malvern PA 19355 USA INSURER E: I INSURER F: (966) 283-7122 800-363-0105 INSURERS) AFFORDING COVERAGE NAIC # f Pittsb'u­r­g­'h 19445 National Urlion Fire" m___ Its Cc of New Hampshire ins Co 23841 The Insurance C oof the '' State o T PA 19429 - Illinois National In`s'ura­n­ceCo ___"2_3'8­_17 0 COVERAGES CERTIFICATE NUMBER: 570059191430 REVISION NUMBER; CANCELLATION THIS IS TO CERTIFY THAT THE POLICIES OF W% RANGE LISTED BEI-01W 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 =T LTR TYPE OF INSURANCE A A D SUB, WvO POLICY NUMBER Attn: Elton Brock LIMITS 9018 Texas Street Denton TX 76209 USA COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE CLAIMS-MADE ❑ OCCUR F crunre—neie MED EXP (Any one person) PERSONAL & ADV INJURY GENI AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE PRO - POLICY JECT LOG PRODUCTS - COMPIOP AGG LO OTHER: 0 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT jEft,1crideng . .......... BODILY INJURY (Per person) 0 ANY AUTO _ .. . . ..... . ...... — z ALL OWNED SCHEDULED BODILY INJURY (Per accident) I AUTOS AUTOS PROPERTY DAMAGE HIRED AUTOS NON-OWNED Ji :t AUTOS C UMBRELLA UA13 OCCUR EACH OCCURRENCE 0 EXCESS LIAR AGGREGATE DEE) RETENTION B WORKERS COMPENSATION AND WC0121460054 04/01/2015 04/0172016 y-THER OTH. 7JER.— EMPLOYERS' LIABILITY YIN 15-16 WC (AK,AZ,VA) TATUTE 1 E.L. EACH ACCIDENT S2,000,000, C ANY PROPRIETOR I PARTNER! EXECUTIVE hlt02,146005S 04/01/2015 04/01/2016 1)FFIoj:RWFM8tR (Mandmory In NNI N/ A 15-16 WC (CA) E.L. DISEASE -EA EMPLOYEE $2,000,000 RIPTI NOFOFT.RAVONSbv.k)w _6_4/_01/2016 E.L. DISEASE-POLICY LIMIT "EL -Fa(h S2.000,000 Excess WC XWC9883964 -64—/01/2015 Accident 52,000,000 15-16 Excess WC OHIO EL Disease - Policy $2,000,000 SIR applies per policy terns & conditions EL Disease - Ea Emp $2,000,000 DESCRIP T WN—OF opEkkimis i LOCATIONS I VEHICLES (ACORD 101, Additional Rtm.i tk% ST., ho dole, may be attached if more space is require d) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Denton AUTHORIZED REPRESENTATIVE Attn: Elton Brock 9018 Texas Street Denton TX 76209 USA @1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 4E13A215- 1137- 4FFB- AC75- F1B3290ED41C EXHIBIT 4 AGENCY CUSTOMER ID: 570000063923 LOC #: ADDITIONAL REMARKS SCHEDULE Page _ of _ AGENCY NAMED INSURED Aon Risk Services Northeast, Inc. Ricoh Americas Holdings, inc POLICY NUMBER see Certificate Number: 570059191430 CARRIER NAIL CODE see Certificate Number: 570059191430 EFFECTIVE DATE: A01)H IOl"w'rAL POLICIES If a policy below does not include limit information, refer to the corresponding policy on the ACORD certificate form for policy limits. ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY POLICY INSR '.. TYPE OF INSURANCE ADDLSUBR ''..... POLICY NUMBER EFFECTIVE EXPIRATION LIMITS LTR INSD wVD DATE DATE MM/DD (MM/DDXYYY WORKERS COMPENSATION D N/A wc0214600S6 04/01/2015 04/01/2016 15 -16 WC (FL) c N/A wc021460058 04/01/2015 04/01/2016 15 -16 WC (MA) 8 N/A wc021460052 04/01/2015 04/01/2016 15 -16 WC (IL.KY, NC,NH,U- B N/A wc021460057 04/01/2015 04/01/2016 15 -16 WC (ME) D N/A wc021460059 04/01/2015 04/01/2016. 15 -16 WC (WI) B N/A wc021460053 04/01/2015 04/01/2016 15 -16 WC (N3, PA) B N/A wc021460051 04/01/2015 04/01/2016 15 -16 WC (ADS) ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Certificate Of Completion Envelope Number: 4E13A21511374FFBAC75F1B3290ED41C Subject: Please DocuSign: Contract Documents #5926 Source Envelope: Document Pages: 39 Signatures: 13 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Record Tracking Status: Original 9/3/2015 12:43:36 PM PT Signer Events Elton Brock elton.brock@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Jason Hinshaw jason.hinshaw @ricoh - usa.com VP of Sales Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 9/3/2015 1:16:48 PM PT ID: 20701caa- acf7- 4b7b- 8d89- 5940c7ea16bc John Knight john.knight @cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Julia Klinck julia.klinck@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: George Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: EXHIBIT 4 Holder: Elton Brock elton.brock@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 ocuSigned by: Ell Oav, (+ivus6w FOC716CAF8FB4DD... Using IP Address: 205.145.18.5 Status: Sent Envelope Originator: Elton Brock elton.brock @cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 9/3/2015 1:04:13 PM PT Viewed: 9/3/2015 1:04:21 PM PT Signed: 9/3/2015 1:06:58 PM PT Sent: 9/3/2015 1:07:00 PM PT Viewed: 9/3/2015 1:16:48 PM PT Signed: 9/3/2015 1:18:25 PM PT Sent: 9/3/2015 1:18:28 PM PT ' StCUfttb Robin Fox Robin.fox @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Tonya Demerson tonya.demerson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 9/3/2015 1:18:27 PM PT Sent: 9/3/2015 1:18:27 PM PT Viewed: 9/4/2015 1:03:35 PM PT EXHIBIT 4 Signer Events Signature Jennifer Walters jennifer.walters @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: In Person Signer Events Signature Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Carbon Copy Events Status Charleta Gilbreath charleta .gilbreath @cityofdenton.com COPIED Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Julia Klinck julia.klinck@cityofdenton.com �� Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Robin Fox Robin.fox @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Tonya Demerson tonya.demerson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 9/3/2015 1:18:27 PM PT Sent: 9/3/2015 1:18:27 PM PT Viewed: 9/4/2015 1:03:35 PM PT EXHIBIT 4 Carbon Copy Events Status Timestamp Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 9/3/2015 1:18:28 PM PT Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Jason Hinshaw EXHIBIT 4 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through your DocuSign, Inc. (DocuSign) Express user account. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to these terms and conditions, please confirm your agreement by clicking the 'I agree' button at the bottom of this document. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized user of the DocuSign system you will have the ability to download and print any documents we send to you through your DocuSign user account for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per -page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. To indicate to us that you are changing your mind, you must withdraw your consent using the DocuSign 'Withdraw Consent' form on the signing page of your DocuSign account. This will indicate to us that you have withdrawn your consent to receive required notices and disclosures electronically from us and you will no longer be able to use your DocuSign Express user account to receive required notices and consents electronically from us or to sign electronically documents from us. 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EXHIBIT 4 Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e -mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -846, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Tymco Model 600 Street Sweeper for the City of Denton Drainage Department; and providing an effective date (File 5929- awarded to Tymco, Inc. in the amount of $201,523.50). FILE INFORMATION This item is a replacement for an older 2009 model that has met the Fleet Department's replacement criteria regarding downtime and repair costs. The Tymco Model 600 Street Sweeper will be mounted on a Freightliner Model M2 chassis and will be purchased through the Buy Board Cooperative Purchasing Network Contract# 420 -13. This item is considered a single source due to increased savings in parts stocking, repair familiarity, and operator training by standardizing the units (Exhibit 1). Quotes were obtained from two (2) cooperative contract vendors and one (1) non contract vendor (Exhibit 2). RECOMMENDATION Award the purchase of one (1) Tymco Model 600 Street Sweeper from Tymco, Inc. in the amount of $201,523.50. PRINCIPAL PLACE OF BUSINESS Tymco, Inc. Waco, TX ESTIMATED SCHEDULE OF PROJECT The purchase and delivery of the street sweeper will occur within 90 days of purchase order issuance. FISCAL INFORMATION City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -846, Version: 1 The Street Sweeper (Fleet ID4DR15153) will be funded from the Drainage Capital Project Fund account 655021645.1355.30100. Requisition 4125519 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Single Source Memo Exhibit 2: Comparison and Quotes Exhibit 3: 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 9/10/2015 EXHIBIT 1 MEMORANDUM DATE: August 26, 2015 X TO: Elton llrµ( ok", FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente SUBJECT: MANUFACTURER — TYMCO INC. The City of Denton Drainage Department began using Tymco Regenerative Air type street sweepers in 2009 and currently operates two (2) units. The Tymco tinits have performed well and Tymco has provided excellent service during this time. Fleet Services is recommending standardization to the Tymco Regenerative Air type street sweeper specification to the extent possible. Standardization to Tymco street sweepers will allow for seamless and safe interchange between operators and minimize costs by improving efficiencies relating to operator and technician training, diagnostic software, specialty tools and stocking of replacement parts. I am requesting authorization to continue the purchase of Tymco Regenerative Air type street sweepers and associated parts for any future needs. Terry Kader Fleet Services Superintendent W a W W U•) t W V) ce O LL O LL a O W O D a v. N W l!i O (14 N 0) n i uuuuu , C `O LL 0 0 0 0 ~ o 0 N LLn V) 0 O Ln � le o N -O +9- ® d: a = C} N d 0O {X..� Q1 Lu N d A LL 6 a C C N 72 O t0 LV (O � O a� _ N (p O� L Ln Ln 7 N oa ;6 E,�� c M N C14 W O •A En co ttr 14r 0 L E ro O N = O HA V a 0 o 0 O O o N O n C � o o L Q) O -0 N C) r 4-A- r U 0 .0 p) W U M H N a LL N o x Cd) U 21 E O k.0 LU 0 O L Q) 'n Lq > Ln O cy- N Ln �O -2 L c ttr O V U v (O fa O .. U m Ln _ � 0 �� u N .. CD Lq ~ CD M LPG N O N LLnn ro LNn M ai u 2 _0 LN d L a CD N C i CC 0 Yr` C c c � r 0 L 00 08 O1 LL J C.1 M S N cu O 0 r0 tD W O a E fu >-Ln N O � N Ln a co W 2: C Ou 'Ln rLo obi O M 0 C A L M O U >p u > N W U O I ' r It IL J w J w 0 Q 0 � Z = o aj 0 0 U Sp O' z C `O LL EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE BUY BOARD COOPERATIVE PURCHASING NETWORK FOR THE ACQUISITION OF ONE (1) TYMCO MODEL 600 STREET SWEEPER FOR THE CITY OF DENTON DRAINAGE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5929- AWARDED TO TYMCO, INC. IN THE AMOUNT OF $201,523.50). WHEREAS, pursuant to Ordinance 2005 -034, the Buy Board Cooperative Purchasing Network has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Buy Board Cooperative Purchasing Network programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 5929 Tymco, Inc. $201,523.50 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to the Buy Board Cooperative Purchasing Network for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Buy Board Cooperative Purchasing Network and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Buy Board Cooperative Purchasing Network, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, EXHIBIT 3 conditions, specifications and standards contained in the Proposal submitted to the Buy Board Cooperative Purchasing Network, 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 5929 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this 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 -847, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Sewer Camera Trailer for the City of Denton Wastewater Collections Department; and providing an effective date (File 5935- awarded to R.S. Technical Services, Inc. in the amount of $133,400). FILE INFORMATION This item is a replacement for an older 2006 model sewer camera trailer that has met the Fleet Department's replacement criteria regarding downtime and repair costs. The sewer Closed Circuit Television (CCTV) inspection camera housed in the CCTV trailer is used to inspect the condition of the existing sewer lines by inserting the camera through a manhole into the sewer line. The CCTV trailer houses the camera, a winch with necessary cable for camera movement in the sewer line, and also houses the TV for closed circuit TV inspection as the camera is pushed through the sewer line. The CCTV inspection allows the crew to assess the condition of the sewer lines and determine the necessary rehabilitation required to keep the wastewater collection system functioning smoothly. The Wastewater Collections Department also uses the CCTV system for trenchless repair of sewer mains- alleviating the need for open cutting of the road pavement for small point repairs. Quotes for this equipment were obtained from one (1) cooperative contract vendor and two (2) non contract vendors. Staff is recommending the purchase of the equipment from the lowest price vendor, R.S. Technical Services, Inc. through Buy Board Cooperative Purchasing Network Contract Number 421 -13 (Exhibit 1). The quote shown on Exhibit 1 indicates Patterson Equipment Co. as is the authorized dealer for the manufacturer, R.S. Technical Services, Inc. The purchase order for the equipment will be issued to R.S. Technical Services, Inc. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) This item will be presented to the Public Utilities Board on September 14, 2015. RECOMMENDATION Award the purchase of one (1) sewer camera trailer to R.S. Technical Services, Inc. in the amount of $133,400. City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -847, Version: 1 PRINCIPAL PLACE OF BUSINESS R.S. Technical Services, Inc. Petaluma, CA ESTIMATED SCHEDULE OF PROJECT The purchase and delivery of the sewer camera trailer will occur within 90 days of purchase order issuance. FISCAL INFORMATION This item will be funded from the Wastewater Capital Fund account 645058645.1355.30100. Requisition 4125545 has been entered in the Purchasing software system. FYHIRITC Exhibit l: Sewer Camera Trailer Comparison and Quotes Exhibit 2: 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 9/10/2015 • • • • • • • • • IN mom I V) N h N Em E 0 U- 4� Ll CD C� In q C) 1-1 C) 00 O CD C) CD CD CD CD Ln C) C) C� C) CD CD Ln C) V E Ln -j 4 L- 4-J 4 - 0 0 0 Ln 0- >- u -t3 4� c Ln V) C: C: c c (U m ra C: 0 E E lu LU 0 u CD ui �] E m CD U ko Ln 6 r1i M r" M L-:, U CD LJJ r) ra 0 C: 0 -0 4-J C: E 4A- ro 0 I so u CD o �.o In kR C) 00 C) r< M r" fy) E CD CD co 0 CO 0 M CO M 00 0 rn u 0- 4A- Ul) iA- C: V 0 u E (U :0 C: .2 4-J > CaJ 0 Ln V) C: LU 0) U (D 0 ko CD Ln fV 4-J I I Vu N dl m CD M 0- Lij U 0 Iry O fV CVO co LL CD C� C) r1i C) a) 1.0 CD CD CD CD u u C) a) C: z C) U ro J F, 4-J Ln M >- M > m V) .1 i 4A- iA- 6 CD CD V .2 .0 4 u U" d)- uj .4.1 F- C: 4-J U (u ui Q) 0 0) 0) Eft! 4-J C: = C: o) 0 g- a :3 0-0 0 (D U 0) U- wow 4-J .— C: o >1 c uj m U ra C: -j 0 u < C) (U Lu -2 V 1 0 U 0- 0 CD M: (U r� m 0 M Lij n Ln C: i F- _Ie rl� < D 0 -0 C) LF) C: ­4 lu 00 0 0 W C) 0 U 0 M < LU m 0 ul I =) to Z) CY 0 Z E 0 U- 4� Ll City of Denton 901 -A Texas Street Denton, Texas David Brown 940 - 349 -8419 PH Line # I Part # 2 3 4 5 6 7 14481 Day Rd. Ste #100, Roanoke,TX 76262 - TEL: (281) 770 -6714/ Fax: (281) 323 -4030 Sales otat,ion Quote Number: 150234 Date: 7/8/2015 Expiration:12 /1/2015 Salesperson: Jeff Patterson ^rintion I Price Extend Install of cabinetry, interior and RS Equipment into a 16' Trailer 051 -01000 Installation, Trailer Office Area To Include: (1) - Linoleum flooring (1) - L- shaped countertop (1) - Printer shelf (1) - Shelf mounted equipment console (1) - 12" x 26" x 40" upper cabinet (1) - 20" x 36" bench seat with cushion (1) - 5' indirect fluorescent light (1) - 12 volt do dome light (1) - Bulkhead door (1) - 30" x 36" bulkhead sliding window (2) - Countertop height, 110 volt ac duplex outlets Equipment Area To Include: (1) - Linoleum flooring (1) - Floor mounted, two door cabinet (1) - Rubber matting covered countertop installed on top of cabinet (1) 12" x 20" x 40" upper cabinet (1) - Five drawer tool box with work top (1) - 5' indirect fluorescent light (1) - 18" fluorescent light (1) - 12 volt do dome light (1) - Countertop height, 110 volt fourplex outlet (3) - Street side, wall mounted, 110 volt duplex outlets 051 -34544 Monitor, 19 ", Flat Panel LCD /TFT, Equipment Room, Installed 841 -20671 Cable Kit, 14' trailer, Installed 606 -18274 Non Skid Flooring 703 -13554 Operators Chair With 5 Casters 051 -18279 File Cabinet With Latch And Key Lock 840 -10352 Maintenance Tool Kit (1) - 6" slim taper file and handle (1) - Four in one multi purpose screwdriver (1) - 40 watt soldering iron (1) - Rosin flux solder (1) - Socket wrench set, 5/16" - 3/4" (1) - Tee handle hex wrench set (1) - Ball end hex wrench set (1) - 6" diagonal pliers (1) - 6" slip joint pliers Page 1 Extend Line # Part # Description Price Qty (1) - Digital multi meter (1) - Heat gun (1) - Needle nose pliers (1) - 16 oz. rubber mallet (1) - Roll, 3/4" electrical tape (1) - Wire nut assortment 8 633 -13220 Vise, 4" Installed 1 9 634 -18421 Kit, Grinder, Hand, Variable Speed, Dremel 1 Generator Power System, Battery and Charging System 10 050 - 33939 -1 5.5 Kw Onan CMM Air Cooled, Gasoline EFI 1 Generator And All Mounting Accessories, Box Mount Installed 11 841 -34528 12 Volt, 55 Amp Power Supply With 3 Stage, 1 Battery Over Charging Protection Circuit 12 052 -30572 Battery, 12 Volt With Case, Installed 1 (Required when installing a non - portable generator in a trailer) 13 051 -31644 12 Gallon Fuel Tank With Gauge, Installed 1 Safety Lighting 14 051 -38603 Strobe Light, LED, Whelen L21 HAP, Amber, 1 Installed 15 541 -37118 Sequential Light Bar, 12 Volt DC, with eight LED 1 modules, Installed 16 051 - 31911 -1 Floodlight Set, 27W 12V LED, Installed 1 Water System 17 050 -02022 20 Gallon Water Washdown System With Reel 1 And Hose, Cutaway /Cube /Step Van, Self Contained (1) - Sink and faucet (1) - 2.8 g.p.m. water pump (1) - 20 gallon water tank with shutoff valve (1) - Retractable hose reel with 20' hose and nozzle Air Conditioner and Wall Heater 18 050 - 02017 -1 13,500 Btu Low Profile Roof Mounted Air 1 Conditioner With Heat Strip 19 051 -31419 Wall Heater, 1,500 Watt Cube /Step Van/Trailer 1 Subtotal Mainline Cable Reel with 1500' for Single Conductor Cable 20 030 - 01000 -20 Mainline Cable Reel, Single Conductor 1 (1) - Reel speed controller (1) - Footage counter, English (1) - 6 pin x 3 pin screw on pigtail 21 569 -20283 Single Conductor, Steel Armored Cable, Per Foot 1500 22 841 -34293 Mainline Cable Reel emergency kill switch factory 1 upgrade - Includes a lighted red operator button 23 800 - 39590 -2 Stainless Storage Shelf Above Main Line Cable 1 Reel Mainline Controllers Page 2 EXHIBIT 1 Extend $27,520.00 Line # Part # Description 24 020- 02000 -00 Mainline Controller, Single Conductor, ETL Listed (1) - Mainline controller (1) - Power cord (1) - Parts catalog (1) - System operations manual 25 010 - 01105 -01 Auxiliary Wireless Controller, Dual Tone, Zoom, PS2 (1) - PS2 Wireless Controller (1) - PS2 Wireless Controller to Main Line Cable Reel Interface 26 010 - 01103 -01 Auxiliary Desktop Controller, Dual Tone, Zoom, Joystick Test Cables 27 806 -31484 Test Cable, Mainline, N Plug X 6 Pin Screw On 28 806 -39319 Cable, Mainline, 4 Pin Female (Euro) Screw On To 6 Pin Male Screw On (Camera Test Cable) Camera 29 010 - 01655 -202 TrakSTAR Pan & Tilt Zoom Camera with diagnostics, NTSC, Single Conductor (1) - TrakSTAR rotating head zoom camera with diagnostics and LED lighting, 4 pin (1) - Camera case 30 010 - 01655 -201 TrakSTAR Pan & Tilt Zoom Camera, NTSC, Single Conductor (1) - TrakSTAR rotating head zoom camera, 4 pin, with LED lighting (1) - Camera case Transporter Wheel Unit 31 032 - 02500 -034 TranSTAR Steerable, V3, Inspection Transport Vehicle, Single Conductor with Integrated Color Rear View Camera and Motorized Camera Lift (1) - Mainline steerable tractor, 6 pin with Integrated Color Rear View Camera (1) - Camera lift for TrakSTAR camera (1) - Tractor to camera power cable (6) - Standard tires (1) - Tractor extension kit (1) - TranSTAR Insertion /Retrieval Assembly (1) - Tractor storage rack (1) - Tractor operations manual 32 840 -38613 Kit, Spacer, Small Pipe, 1/4 Increment, TranSTAR 33 840 -39816 Kit, Extension, Axle, Housing, TranSTAR Track Unit 34 032 - 05102 -010 ProTRAK Tread Drive Transporter, Single Conductor, 6 " -15 ", with 4 Pin Camera Cable (1) - 8 -15" Tread drive ProTRAK (1) - 6" Pipe Kit (1) - Vehicle mounting kit (1) - Accessories kit Wheel Sets Page 3 Price EXHIBIT 1 Extend Line # Part # Description 35 840 -35686 MegaTRAK wheel kit, TranSTAR Tractor Includes: (6) - Hub assemblies (6) - 2.70" diameter wheel rings (6) - 3.30" diameter wheel rings (4) - 4.40" diameter wheel rings (1) - Snap ring pliers 36 867 -34822 High Traction Caster Wheel, TranSTAR Tractor 37 867 -34843 Knobby Balloon Wheel, TranSTAR Tractor 38 860 -37376 6" X 2" Pneumatic Wheel Assembly, TranSTAR 41 451 -40071 Tractor 39 860 -37377 8" X 2" Pneumatic Wheel Assembly, TranSTAR Tractor Page 4 Price 1 0 1 1 2 1 1 1 1 1 1 1 2 1 1 1 1 EXHIBIT 1 Down Hole Roller Guide System 40 039 - 01000 -10 Down hole Roller Set, Single Manhole Setup with 6 poles and Articulating Arm Cable Guide (1) - Top manhole roller (1) - Double roller (1) - Manhole adaptor hook (6) - Extension pole (1) - Grab hook (1) - Articulating arm, nylon roller (1) - Lowering rope Data Collection System 41 451 -40071 Dual Monitor Rack Mount 42 704 -34196 Monitor, Tru -Vu, 19 ", Flat Panel LCD/TFT Studio, Installed, *(Add Mounting Rack If Retrofit)* 43 867 -37155 Video Overlay For WinCAN Data Collection System 44 950 -31728 Installation, Winlogger Rack Mount CPU Into Customer's Unit 45 RM CPU WinCAN Ready Rack Mount Computer 46 WC4030 WinCAN Video Capture Card (ViTec) 47 702 -35033 Wireless Keyboard and Mouse Set 48 045 - 01000 -02 Color Ink Jet Report Printer For Data Collecction System, Installed Spare Parts 49 806 -38138 Cable, Interconnect, TranSTAR (4 Pin) to Camera (4 Pin), 13.5 inches long 50 806 -30631 Pigtail, 3 Pin Male X 6 Pin Female, Bullet Connector To Tractor Or Camera 51 841 -31486 Removable Pigtail Field Termination Kit With Bullet Connector, 6 Pin Female X 3 Pin Male Pigtail Cable And Installation Items 52 1841 -31914 Field Termination Kit for Bullet Connector, (compression fitting replacement kit) Camera/Tractor Presurization Kit 53 630 -36875 Cylinder, Gas, Nitrogen, 40 CU FT 54 840 -35012 Camera/Tractor Nitrogen Recharging Kit (Does Not Include Nitrogen Canister) (1) - Pressure regulator Page 4 Price 1 0 1 1 2 1 1 1 1 1 1 1 2 1 1 1 1 EXHIBIT 1 Line # I Part # 55 806 -37583 56 052 -39140 57 V950 -18224 58 1950- 18024 -3 59 1607 -18920 60 I DELIVERY Description (1) - Hose (1) - Kit Stand Camera/Tractor Sonde & Receiver Cable, 3 Pin X 6 Pin With Sonde Transmitter Location Detector /Receiver, Rycom Model 8873 -SD Warranty Warranty Against Defects in Materials and Wrokmanship on Components Manufactured by R.S. Technical Service, Inc to include: (2) Two Years for Cameras and Tractors (5) Five Years for Mainline Controllers, Cable Reel and Single Conductor Cable Lifetime on LED Light Array Training Training, RST Equipment/P.O.S.M., Other Personnel, Per Day Trailer 16'x 7'x7' Tandem Axle trailer with LED Light Package Color: Silver Electric Brakes; RV Style Side Door; Double Rear Doors Dimensions: Overall Length: 19,101, Overall Width: 7' 8" Overall Height: 91111 Interior Length: 161511 Interior Width: 61611 Interior Height: 6' 11" Software Support Subtotal xa a Bo rd n r r l t P 4 1-1 illl piiiiding re iuuts 5% texas III'Illltuy III'foaiiid fiiisoouU' f Delivery from Petaluma, CA to Denton, TX Quote does not include Delivery Cost or applicable taxes (state and local) Page 5 Price 1 1 1 $1,000.001 2 $6,379.001 1 $1,900.001 1 EXHIBIT 1 Extend $95,601.00 $2,000.00 $6,379.00 $8,379.00 $1,900.00 Sub -Total $133,400.00 Tax Total $133,400.00 EXHIBIT 1 6/26/2015 City of Denton 901 Texas Ave. ATTN: David Brown RE: CUES CCTV Trailer Budget Quote David, Thank you for the opportunity to quote you on the CUES Cameras CCTV inspection trailer. Following are the proposed specifications and budget pricing for CUES system to be mounted on a 14' tandem axle trailer: 1 7X14 TANDEM AXLE TRAILER, 7000GVWR 1 Tandem Axle Trailer TV TRAILER EXTERIOR LIGHTING & CONTROL ROOM TO INCLUDE: 1 Amber Electronic Strobe Warning Beacons 2 Adjustable Floodlights Rear of Vehicle Area Illumination Control Room Interior: 1 Lonseal Lonplate Flooring 1 Kemlite Wall Covering 1 Smooth - Painted Aluminum Ceiling 1 Bulkhead Wall with Passage Door from Control Room to Equipment Room 1 "Safety Plus Visual" Viewing Window in Bulkhead Wall 1 Above Desk Control Console with Rack Mount for Electronic Equipment 1 Desktop / Work Area 1 110 -Volt Fluorescent Light Fixture 1 Electrical Outlet with Dual Receptacles 1 Fire Extinguisher with Bracket, 10BC Rating 1 Operators Chair, Swivel with Casters 1 12 -Volt Courtesy Light 1 CARBON MONOXIDE DETECTOR MOUNTED IN INTERIOR OF UNIT 1 ROOF TOP AIR CONDITIONER, 13,500 BTU WITH HEAT STRIP 1 STORAGE CABINET UNDER CONTROL ROOM DESKTOP 1 TV TRAILER EQUIPMENT ROOM INTERIOR TO INCLUDE: 1 Kemlite Wall Covering 1 Smooth - Painted Aluminum Ceiling 7@. m Oft .:'m,cCt!'t. CLS Equipment Company C LS North Service Center CLS South Service Center 726 S. Sherman Street ;000 N. Loop East Richardson, Texas 75081 Houston, Texas 77028 Office: 972-479-1335 Office: 281-440 Fax: 972-479-1336 Fax: 281-440-1879 6/26/2015 City of Denton 901 Texas Ave. ATTN: David Brown RE: CUES CCTV Trailer Budget Quote David, Thank you for the opportunity to quote you on the CUES Cameras CCTV inspection trailer. Following are the proposed specifications and budget pricing for CUES system to be mounted on a 14' tandem axle trailer: 1 7X14 TANDEM AXLE TRAILER, 7000GVWR 1 Tandem Axle Trailer TV TRAILER EXTERIOR LIGHTING & CONTROL ROOM TO INCLUDE: 1 Amber Electronic Strobe Warning Beacons 2 Adjustable Floodlights Rear of Vehicle Area Illumination Control Room Interior: 1 Lonseal Lonplate Flooring 1 Kemlite Wall Covering 1 Smooth - Painted Aluminum Ceiling 1 Bulkhead Wall with Passage Door from Control Room to Equipment Room 1 "Safety Plus Visual" Viewing Window in Bulkhead Wall 1 Above Desk Control Console with Rack Mount for Electronic Equipment 1 Desktop / Work Area 1 110 -Volt Fluorescent Light Fixture 1 Electrical Outlet with Dual Receptacles 1 Fire Extinguisher with Bracket, 10BC Rating 1 Operators Chair, Swivel with Casters 1 12 -Volt Courtesy Light 1 CARBON MONOXIDE DETECTOR MOUNTED IN INTERIOR OF UNIT 1 ROOF TOP AIR CONDITIONER, 13,500 BTU WITH HEAT STRIP 1 STORAGE CABINET UNDER CONTROL ROOM DESKTOP 1 TV TRAILER EQUIPMENT ROOM INTERIOR TO INCLUDE: 1 Kemlite Wall Covering 1 Smooth - Painted Aluminum Ceiling 7@. m Oft .:'m,cCt!'t. Recipient: David Brown City of Denton Denton, Tx EXHIBIT 1 Green Equipment Co. Jimmy F Fougerousse, Salesman Green Equipment Co. 2563 Gravel Drive Fort Worth, TX 76118 817 - 247 -5039, fax: 817 - 284 -1107 � h .,�,�,�,,.,� � � , ...aw�..�.. @greeneq .. � 0000019773 mm ougerousse u►pco com, C. . . . . . . . . . ...... . . . .. . . . ... . . . . . ....... Date Jul 17, 2015 SffMtC by: Green Equipment Co F lC ys truc %- trash: -3001 US $68 000.00 1 Standard ROVVER X Truck System (with 300m reel and basic WinCan VX; available 312014) includes VC200 pendant controller with desk- trrount and US Connector PC- VC, lNCX90 camera, RX I30 crawler with b ackeye o amera„ inclination, sonde, clutch, RAX300 cable reel with wireless remote and 300M of orange Gore cable, Af1dilional accessories include emorg(,racy stop cable for reel, mounting frame liar reel, pressurization kit. Meel .sets hiclude 6 smal/ standard robber wheels, 4 rnediuna rubber wheels, 4 large rubber wheels, 4 medium grease wheels, and wheel extenders. L� ............. ......... ....E..564- 0900..00.. .. .. US $12 000...0.0 ......�.._ 1 - - -� US $12,000.00 Remote Lift Accessory to raise /lower the RCX90 camera on the RX130 crawler — - . — --- _..... _....... S $10, 000.00 1 US $10, 000.00 _. --------- E- 569 - 0900 -00 U.. ... Crawler Extension / Carrier RCR1000 extends the capability of the RX130 crawler up to 38" Mis donyen r)l contams nMdc+MmW mfuenalaon upfena79d for a spermtw anddwiduai and purpose, and is protected by law. Page 1 It you area nr the urt�asis d rwnrdrMeprl, pima shou?a` he' fwrar d them to fhe �nrWw daaa�rd above. My* disckrsarrr copyfwd or, c islaabutaor7 aril this docunronl watrwuaat the consent of vendor and sender is strictly prohibited bylaw (Continued ...) Recipient David Brown City of Denton Denton, Tx EXHIBIT 1 Jimmy F Fougerousse, Salesman Green Equipment Co. 2563 Gravel Drive Fort Worth, TX 76118 817 - 247 -5039, fax: 817 - 284 -1107 _..._------ ....m..M..e „. equipco. com Timm ougerousse green.. ��,. Quote. 0000019773 .........,w........��.......... 1111... Date: _ .W__ _ ww........_ .._ ......... .._..._ 1111. Jul 17, 2015 Submitted by: Green Equipment Co ,.. E- 559 - 0900 -00 US $3,500.00 1 1 .111...... ...... US $3, 500.00 Rear -View Camera Option with auxiliary LED lights for RX130 .. . ....... _........ .......... ..... .......... ..............._. —_ ..... SPCL US $33,917.00 1 ..,. - US $33,917.00 7X12 Trailer with build out. See attached specifications - - 1111.. E PA -Rac — .... kmount -01 f US $2, 880 00 I 1 US $2, 880.00 Rack Mount Computer Includes Windows 7 Pro, Intel I -Quad 1333FSB Processor, 4U 19 -inch rack - mount case (17.5'x16.9'x6.9'), PC/ wireless extend6d ran e, 2GB DDR -3 16001SB RAM, two Seagate 50OGB SATA -2 hard drives, t7 VD -RW dilve, one -year warranty. l'..m._._ — SPCL....... .. _ ... US $' 795 ^00 �_� ........ l .. US ^$ 795 OO.m. Extra Monitor for office. mSPCL. US $3,330 00 ......... �... 9 - US $3,330.00 I Transport & freight fees 7105 document avrt ours coo fi{fearpal hnforrneada oAr irdd rrrdea rer n spevft Mddvfa� AM and purpose, and is protected by law. Page 2 di yr u ate nol Me tnten it eupteni. ,fur xho rd kswaP6r On to the lawcNvii oral above. Airy disi�tuaure, ci,y rip to °iNst�rbulrnrw rat forms d d aa�rae art wvthnut the consent of vendor and sender is strictly prohibited by law. (Continued ...) David Brown City of Denton Denton, Tx 0000019773 EXHIBIT 1 Green Equipment Co. Jimmy F Fougerousse, Salesman Green Equipment Co. 2563 Gravel Drive Fort Worth, TX 76118 817 - 247 -5039, fax: 817 - 284 -1107 jimmyrougerousse(a )greenequipco. com, Date. Jul 17, 2015 $ U61111tted bJ/: Green Equipment Co ................._ _ __ ........... .....____- ,............. SPCL ....US $1,518.00 ...� . .1 ._. US $1,518. 00 E- 558 - 0580 -00 Set of 6 Axles (upgrade existing) . ,,, SPCL ............. ___ ..... US $524.40 4...... r m, US $2,097.60 080 - 0704 -00 Wheel D175x88/d12 QCD (XXXL Rubber) Notes: This proposal may be withdrawn if not accepted within the period shown below. All equipment remains the property of the seller until sum stated above is paid in full. We propose to furnish labor and material, complete in accordance with above specifications, and subject to the conditions found on this agreement, for the sum stated above in accordance with the terms as specified. Expiration Period: 30 days Terms: Cash FOB: Randolph, NJ Currency:US $ Total: r US � $138,037.60 Respectfully Submitted, Green Equipment Co. The above, prices, specifications, and conditions are satisfactory and are hereby accepted. You are authorized for the work specified. Payment will be made as specified. Accepted by This document contains confidential information intended for a specO PndPvddual and purpose, and is protected bylaw. Page 3 If you are not the dntersded acemcoprento ,yearn show tiuveanl ttus to the indviduat above. Any disr;has4", copydnlp ow, dlsuuord ioo at this drXu n ont wlthour the consent of vendor and sender is strictly prohibited by law. Date EXHIBIT 1 I Climate Controlled Breaker Box/Electronics Storage Area with Locking Positive Latches Electrical Outlet with Dual Receptacles 110 -Volt Fluorescent Light Fixture 12 -Volt Courtesy Light with 15 Minute Timer Located at Rear Door Area 1 LONSEAL LONPLATE FLOORING IN EQUIPMENT ROOM 1 20- GALLON WASHDOWN SYSTEM TO INCLUDE: 1 20- Gallon Fresh Water Tank 1 Electric Water Pump 1 Retractable Hose Reel with 25' Water Hose and Nozzle 1 UPPER AND LOWER STORAGE CABINET IN EQUIPMENT ROOM 1 Lower Storage Cabinet / Work Top with Sink and Faucet 1 Upper Wall Mounted Storage Cabinet 1 ADDITIONAL LIGHT AND OUTLET 1 Fluorescent Light and Fixture Mounted Above Work Top 1 Dual Receptacle Outlet above Work Top 1 15 GALLON CARB /EPA FUEL TANK FOR TRAILER 1 7500 WATT QUIET DIESEL ONAN GENERATOR 1 120 Volt 60 HZ 7500 Watt (Minimum) Commercial Grade "Quiet" Generator 1 Diesel Powered 1 Electric Start 1 POWER SUPPLY COMPONENTS TO INCLUDE: 1 Generator Compartment Mounted on Trailer Tongue 1 Commercial Power Supply Receptacle, 25' Cord, and Plug 1 Electrical Supply Center with Circuit Breaker Box 1 Commercial power and Generator Power Connectors 1 Automatic Power Transfer Switch SYSTEM ENGINEERING PANEL, FOR POWER INFORMATION AND GENERATOR FUNCTIONS, RACK MOUNTED, TO INCLUDE: 1 Four Function AC Power Meter displaying Critical Power Information including: 1 Voltage 1 Hertz 1 Amperage 1 Active Power (Watts) 1 Front panel Selector Switch for two modes of operation: 1 Fixed reading 1 Continuous Auto - cycling 1 Generator Battery Meter to Display Starting and Charging Voltage 1 Generator Hour Meter 1 Generator Remote Start/Stop Control Switch www.Sewerl CLS Equipment Company C LS North Service Center CLS South Service Center 726 S. Sherman Street ,iii N. loop East Richardson, Texas 75081 Houston, Texas 77028 Office: 972-479-1335 Office: Fax: 972-479-1336 Fax: 40 Climate Controlled Breaker Box/Electronics Storage Area with Locking Positive Latches Electrical Outlet with Dual Receptacles 110 -Volt Fluorescent Light Fixture 12 -Volt Courtesy Light with 15 Minute Timer Located at Rear Door Area 1 LONSEAL LONPLATE FLOORING IN EQUIPMENT ROOM 1 20- GALLON WASHDOWN SYSTEM TO INCLUDE: 1 20- Gallon Fresh Water Tank 1 Electric Water Pump 1 Retractable Hose Reel with 25' Water Hose and Nozzle 1 UPPER AND LOWER STORAGE CABINET IN EQUIPMENT ROOM 1 Lower Storage Cabinet / Work Top with Sink and Faucet 1 Upper Wall Mounted Storage Cabinet 1 ADDITIONAL LIGHT AND OUTLET 1 Fluorescent Light and Fixture Mounted Above Work Top 1 Dual Receptacle Outlet above Work Top 1 15 GALLON CARB /EPA FUEL TANK FOR TRAILER 1 7500 WATT QUIET DIESEL ONAN GENERATOR 1 120 Volt 60 HZ 7500 Watt (Minimum) Commercial Grade "Quiet" Generator 1 Diesel Powered 1 Electric Start 1 POWER SUPPLY COMPONENTS TO INCLUDE: 1 Generator Compartment Mounted on Trailer Tongue 1 Commercial Power Supply Receptacle, 25' Cord, and Plug 1 Electrical Supply Center with Circuit Breaker Box 1 Commercial power and Generator Power Connectors 1 Automatic Power Transfer Switch SYSTEM ENGINEERING PANEL, FOR POWER INFORMATION AND GENERATOR FUNCTIONS, RACK MOUNTED, TO INCLUDE: 1 Four Function AC Power Meter displaying Critical Power Information including: 1 Voltage 1 Hertz 1 Amperage 1 Active Power (Watts) 1 Front panel Selector Switch for two modes of operation: 1 Fixed reading 1 Continuous Auto - cycling 1 Generator Battery Meter to Display Starting and Charging Voltage 1 Generator Hour Meter 1 Generator Remote Start/Stop Control Switch www.Sewerl EXHIBIT 1 1 ff On /Off Switch for Emergency Warning beacons (Switch to Illuminate When On) P &T ZOOM III M/C BUILT -IN SONDE LED CAMERA OZ3 1 Solid State Color Sewer TV Camera 1 Pan & Rotate Camera Head, 40:1 Zoom Ratio, 1 Ox Optical Zoom, 4x Digital Zoom 1 NTSC Color Standard with 4x Light Integration 1 4 x 5W Cluster LED's for 6" through 72" lines 1 Built In Transmitter, 512 Hz 1 Camera Transportation and Storage Case 1 COMPACT TRAC TRANSPORTER M/C ULTRA SHORTY 3 1 For 6" Relined Pipe Sizes with Free Wheel and Powered Reverse 1 Spare Parts Kit with additional Links and Rubber Cleats 1 Built In 6 -Pin Receptacle for Direct Insertion of the Camera 1 Protective Housing for Optical Zoom Camera Pan & Tilt with Locking Feature 1 "T" Handle for Quick Removal / Insertion of Optical Zoom Pan & Tilt Camera 1 18" - 24" COMPACT TRAC TRANSPORTER EXTENSION KIT 1 8 " -15" EXTENDERS FOR COMPACT TRAC TRANSPORTER 1 SPARE PARTS KIT FOR TRAC TRANSPORTER TO INCLUDE: 1 Additional Chain Links and Rubber Cleats 1 1000' PLATINUM CABLE ASSEMBLY, M/C 12PIN 1 1000' Platinum Multi Conductor Kevlar Fiber Armored Combination TV Transmission /Tow Cable 1 .350 Diameter 1 Metal Splice Chamber with Pigtail 1 Cable Strain Relief TV REEL ASSEMBLY, MECHANICAL FOOTAGE FOR SUMMIT .350 CABLE W /AUTO PAYOUT 1 Black Thermoplastic Powder Coated Frame 1 Power Level wind & Multi Ratio Manual Transmission 1 Automatic Cable Payout System 1 Footage Meter with Local Counter and Remote Electronic Counter 1 Transmission Control at Viewing Station 1 Local Reel Mount Electrical and Mechanical Control 1 Sealed Continuous Contact Collector Assembly 1 Removable Drip Pan for Cleaning 2 19" (MINIMUM) FLATSCREEN COLOR INDUSTRIAL TV MONITOR NTSC / PAL COLOR STANDARDS 1 PCU ASSEMBLY [RACK MOUNT] .Sty, t'rToo1,s.c.tf` t CLS Equipment Company C LS North Service Center CLS South Service Center 726 S. Sherman Street :000 N. Loop East Richardson, Texas 75081 Houston, Texas 77028 Office: 972-479-1335 Office: 281-440-1881 Fax: 972-479-1336 Fax: 281-440-1879 On /Off Switch for Emergency Warning beacons (Switch to Illuminate When On) P &T ZOOM III M/C BUILT -IN SONDE LED CAMERA OZ3 1 Solid State Color Sewer TV Camera 1 Pan & Rotate Camera Head, 40:1 Zoom Ratio, 1 Ox Optical Zoom, 4x Digital Zoom 1 NTSC Color Standard with 4x Light Integration 1 4 x 5W Cluster LED's for 6" through 72" lines 1 Built In Transmitter, 512 Hz 1 Camera Transportation and Storage Case 1 COMPACT TRAC TRANSPORTER M/C ULTRA SHORTY 3 1 For 6" Relined Pipe Sizes with Free Wheel and Powered Reverse 1 Spare Parts Kit with additional Links and Rubber Cleats 1 Built In 6 -Pin Receptacle for Direct Insertion of the Camera 1 Protective Housing for Optical Zoom Camera Pan & Tilt with Locking Feature 1 "T" Handle for Quick Removal / Insertion of Optical Zoom Pan & Tilt Camera 1 18" - 24" COMPACT TRAC TRANSPORTER EXTENSION KIT 1 8 " -15" EXTENDERS FOR COMPACT TRAC TRANSPORTER 1 SPARE PARTS KIT FOR TRAC TRANSPORTER TO INCLUDE: 1 Additional Chain Links and Rubber Cleats 1 1000' PLATINUM CABLE ASSEMBLY, M/C 12PIN 1 1000' Platinum Multi Conductor Kevlar Fiber Armored Combination TV Transmission /Tow Cable 1 .350 Diameter 1 Metal Splice Chamber with Pigtail 1 Cable Strain Relief TV REEL ASSEMBLY, MECHANICAL FOOTAGE FOR SUMMIT .350 CABLE W /AUTO PAYOUT 1 Black Thermoplastic Powder Coated Frame 1 Power Level wind & Multi Ratio Manual Transmission 1 Automatic Cable Payout System 1 Footage Meter with Local Counter and Remote Electronic Counter 1 Transmission Control at Viewing Station 1 Local Reel Mount Electrical and Mechanical Control 1 Sealed Continuous Contact Collector Assembly 1 Removable Drip Pan for Cleaning 2 19" (MINIMUM) FLATSCREEN COLOR INDUSTRIAL TV MONITOR NTSC / PAL COLOR STANDARDS 1 PCU ASSEMBLY [RACK MOUNT] .Sty, t'rToo1,s.c.tf` t EXHIBIT 1 mm 1 CCU ASSEMBLY [RACK MOUNT] 1 Alpha Numeric Information Display, with Multi Paging and Defect Coding 1 Remote "QWERTY" Keyboard for Data Entry 1 On Screen Footage Display 1 WRC and PACP Codes 1 TEST CABLE WIRED & WIRELESS USB CONTROLLER 1 Joystick Control for Pan and Tilt Zoom Camera to Include: 1 360 Degree Rotate 1 330 Degree Optical Pan 1 Joystick Control for All Steering Functions & Forward / Reverse Directions for Transporter 1 Camera Lift Control for Optional Electronic Camera Lift 1 All Other Controls for Camera to Include: 1 Camera Iris and Focus Override & Zoom 1 Camera Lights & Shutter Control for Light Enhancement 1 Camera Diagnostics & Auto Home 1 Cruise Control to Set Speed of the Transporter for Hands off Operation 1 All Reel Controls to Include: Retrieve, Release, and Variable Speed 1 8.7" MINI KEYBOARD [RACK MOUNT] COMPUTER W /GraniteNet BASIC TO INCLUDE (MINIMUM): 1 Motherboard with 1155 Socket and Intel Z87 Chipset 1 Intel Core i7 -4770K Haswell 3.5 GHz Quad -Core Processor 1 8GB (2x4GB) 240 -pin of DDR3 1600 SDRAM 2 LAN, On Board Network Connections, 10 / 100 / 1000 Mbps 6 USB 2.0 Ports (4 on Rear, 2 on Front) 6 USB 3.0 Ports (6 on Rear) 2 RS232 Serial Com Ports 1 Bluetooth v4.0 / v3.0 + HS 1 WiFi IEEE 802.11 a/b /g /n 1 On Board Sound 1 DVD + / - RW DVD Burner 20x / CD - RW 40x Internal 1 1 TB (7,200 RPM) SATA Hard Drive 1 120 GB Solid State Drive, SATA3 1 400 Watt 1 UEPS 80 PLUS Server ATX Power Supply 1 USB Video Capture Device for MPEG 1 / 2 / 4 / WMV 1 1 G 64 -bit DDR3 PCI Express Video Card 1 Industrial Hardened Case Slim 2U Design for 19" Rack 1 Windows 7 Professional 64 -bit Operating System 1 GraniteNet Basic Software 1 User Guide 1 USB BLACK COMPUTER KEYBOARD AND MOUSE 1 HP OFFICEJET COLOR PRINTER C LS North Service Center CLS South Service Center 726 S. Sherman Street :iii N. Loop East Richardson, Texas 75081 Houston, Texas 77028 Office: Fax: 972-479-1336 Fax: i 1 CCU ASSEMBLY [RACK MOUNT] 1 Alpha Numeric Information Display, with Multi Paging and Defect Coding 1 Remote "QWERTY" Keyboard for Data Entry 1 On Screen Footage Display 1 WRC and PACP Codes 1 TEST CABLE WIRED & WIRELESS USB CONTROLLER 1 Joystick Control for Pan and Tilt Zoom Camera to Include: 1 360 Degree Rotate 1 330 Degree Optical Pan 1 Joystick Control for All Steering Functions & Forward / Reverse Directions for Transporter 1 Camera Lift Control for Optional Electronic Camera Lift 1 All Other Controls for Camera to Include: 1 Camera Iris and Focus Override & Zoom 1 Camera Lights & Shutter Control for Light Enhancement 1 Camera Diagnostics & Auto Home 1 Cruise Control to Set Speed of the Transporter for Hands off Operation 1 All Reel Controls to Include: Retrieve, Release, and Variable Speed 1 8.7" MINI KEYBOARD [RACK MOUNT] COMPUTER W /GraniteNet BASIC TO INCLUDE (MINIMUM): 1 Motherboard with 1155 Socket and Intel Z87 Chipset 1 Intel Core i7 -4770K Haswell 3.5 GHz Quad -Core Processor 1 8GB (2x4GB) 240 -pin of DDR3 1600 SDRAM 2 LAN, On Board Network Connections, 10 / 100 / 1000 Mbps 6 USB 2.0 Ports (4 on Rear, 2 on Front) 6 USB 3.0 Ports (6 on Rear) 2 RS232 Serial Com Ports 1 Bluetooth v4.0 / v3.0 + HS 1 WiFi IEEE 802.11 a/b /g /n 1 On Board Sound 1 DVD + / - RW DVD Burner 20x / CD - RW 40x Internal 1 1 TB (7,200 RPM) SATA Hard Drive 1 120 GB Solid State Drive, SATA3 1 400 Watt 1 UEPS 80 PLUS Server ATX Power Supply 1 USB Video Capture Device for MPEG 1 / 2 / 4 / WMV 1 1 G 64 -bit DDR3 PCI Express Video Card 1 Industrial Hardened Case Slim 2U Design for 19" Rack 1 Windows 7 Professional 64 -bit Operating System 1 GraniteNet Basic Software 1 User Guide 1 USB BLACK COMPUTER KEYBOARD AND MOUSE 1 HP OFFICEJET COLOR PRINTER EXHIBIT 1 1 GraniteNet BASIC SUPPORT PLAN 1 UPS TO INCLUDE THE FOLLOWING: 1 Input 120 -Volt / Output 120 -Volt 1 Cord Management Straps 1 MANHOLE TOP ROLLER ASSEMBLY, TV ONLY 1 MANHOLE ADAPTER CLAW HOOK 6 RETRIEVAL/DOWNHOLE POLE ASSEMBLY 1 INVERT ROLLER ASSEMBLY 1 RETRIEVAL HOOK 1 MULTI CONDUCTOR TV ONLY TOOL KIT 1 Milliamp meter Tool 1 Electrical Tape 1 Needle Nose Pliers 1 Six -In -One Screwdriver 1 6" Adjustable Wrench 1 Anti Seize Grease 1 9 -Piece Allen Wrench kit 1 Solder Iron Kit 1 Industrial Pliers 1 5/32 T- Handle Hex Wrench 1 Multi Conductor TV Only Operation Manual 1 Parts Catalog 1 Cable Repair Kit DVD 1 TV Only Training DVD 4 DAYS TRAINING, ON -SITE 1 TRAILER DELIVERY -TEXAS Budget price for CUES CCTV trailer as listed above: $150,000.00 Note: See options on following pages: CLS Equipment Company C LS North Service Center CLS South Service Center 726 S. Sherman Street :0,0 N. Loop East Richardson, Texas 75081 Houston, Texas 77028 Office: 972-479-1335 Office: 281-440-1881 Fax: 972-479-1336 Fax: 281-440-1879 1 GraniteNet BASIC SUPPORT PLAN 1 UPS TO INCLUDE THE FOLLOWING: 1 Input 120 -Volt / Output 120 -Volt 1 Cord Management Straps 1 MANHOLE TOP ROLLER ASSEMBLY, TV ONLY 1 MANHOLE ADAPTER CLAW HOOK 6 RETRIEVAL/DOWNHOLE POLE ASSEMBLY 1 INVERT ROLLER ASSEMBLY 1 RETRIEVAL HOOK 1 MULTI CONDUCTOR TV ONLY TOOL KIT 1 Milliamp meter Tool 1 Electrical Tape 1 Needle Nose Pliers 1 Six -In -One Screwdriver 1 6" Adjustable Wrench 1 Anti Seize Grease 1 9 -Piece Allen Wrench kit 1 Solder Iron Kit 1 Industrial Pliers 1 5/32 T- Handle Hex Wrench 1 Multi Conductor TV Only Operation Manual 1 Parts Catalog 1 Cable Repair Kit DVD 1 TV Only Training DVD 4 DAYS TRAINING, ON -SITE 1 TRAILER DELIVERY -TEXAS Budget price for CUES CCTV trailer as listed above: $150,000.00 Note: See options on following pages: EXHIBIT 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE BUY BOARD COOPERATIVE PURCHASING NETWORK FOR THE ACQUISITION OF ONE (1) SEWER CAMERA TRAILER FOR THE CITY OF DENTON WASTEWATER COLLECTIONS DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5935- AWARDED TO R.S. TECHNICAL SERVICES, INC. IN THE AMOUNT OF $133,400). WHEREAS, pursuant to Ordinance 2005 -034, the Buy Board Cooperative Purchasing Network has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Buy Board Cooperative Purchasing Network programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 5935 R.S. Technical Services, Inc. $133,400 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to the Buy Board Cooperative Purchasing Network for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Buy Board Cooperative Purchasing Network and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Buy Board Cooperative Purchasing Network, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the Buy Board Cooperative Purchasing Network, 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 5935 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12015. 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 -848, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a purchase order through The Interlocal Purchasing System (TIPS) Cooperative Purchasing Program Contract 402042315 for the partial replacement of the roof at the City of Denton Civic Center by way of an Interlocal Agreement with the City of Denton; and providing an effective date (File 5923- awarded to CBS Mechanical, Inc. in the amount of $153,308). FILE INFORMATION This contract is for the partial replacement of the roof at the Civic Center (Sections A and B). These sections were scheduled to be replaced in 2011 but the Facilities Management Preventative Maintenance Program made it possible to extend the life of the roof four (4) years longer than expected. The roof is now out of warranty and is showing signs of failure. The Facilities Management Department and the City's roofing consultant, Armko Industries, recommend the replacement of sections A and B of the roof by utilizing the Interlocal Purchasing System (TIPS) Cooperative Purchasing Program. Staff requested and reviewed proposals from three (3) roofing contractors that could handle a job of this size (Exhibit 1). The lowest price quote was submitted by CBS Mechanical, Inc., a local vendor, in the amount of $153,308 which includes pricing for payment and performance bonds (Exhibit 2). Therefore, Facilities Management staff recommends awarding the contract to CBS Mechanical, Inc. This proposed roof replacement includes twenty (20) year warranty. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) Council approved an Interlocal Agreement with The Interlocal Purchasing System (TIPS) on May 17, 2011 (Ordinance# 2011 -082). RECOMMENDATION Staff recommends award to CBS Mechanical, Inc. in the amount of $153,308. PRINCIPAL PLACE OF BUSINESS City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -848, Version: 1 CBS Mechanical Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT This project is estimated to be completed within 90 days after Notice to Proceed. FISCAL INFORMATION The project will be funded from Facilities Management Capital Project Fund account 100183409.1365.40100. Requisition# 125374 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Proposal Comparison Exhibit 2: Quote from CBS Mechanical, Inc. Exhibit 3: Ordinance Exhibit 4: 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 9/10/2015 EXHIBIT 1 File 5923 -Civic Center Roof Replacement Proposal Tabulation CBS Mechanical, Inc.* Tri -Lam Roofing & Weatherproofing ** Roof Management ** Place of Business Denton, TX Everman Dallas Base Proposal $151,295.00 $162,500.00 No Bid Payment and Performance Bond $2,013.00 $0.00 $0.00 Proposal Total $153,308.00 $162,500.00 $0.00 *Total amount Includes Payment and Performance Bonds ** Total amount does not include Payment and Performance Bonds EXHIBIT 2 Proposal ROOFING SER.Vl(-',ES A Division ofCBS Mechanical, Ink- 5001 WEST UNIVER.S11 Y DRIVE DENTONJ EXAS 76207 (940) 387-7568 FAX(940)387 -3890 Attn: David Saltsman ---- - ------------ PHONE City of Denton 940-349-7247 ---l—MILY -1L. 2015 869 S. Woodrow Denton Civic Center-Sections A & B CITY, SrAfF, AND ZIPCODF: JOB LOCATION. Denton, TX 76205 Denton, TX 02042315 940-349-72(, 9 0 We hereby subma specAlicafionsand esifinarts fin: Provide labor materials and ec u anrrernt for the followin Y er Armkos specifications' 1,R ............... _ I Tear off and remove existing root'systerns down to Gypsurn deck, Including all base flashings and parapet walls throughout entire field of roof. 2.) (.1can and remove all dirt and debris from Gympsurn deck. 3 M echani cally attach a new 28 pound base sheet using 1.7" fasteners per Arniko's r(Nuirements. 4.) Fully adhere 3.5" of'Polylso on non-tapered areas and install a 25132" coverboard using type IV asphalt per manufacturer's specilleations. 5.) Adhere 80 mil SBS base sheet using type IV asphalt. 6.) Section A: Fully adhere a Ifyload ME' cap sheet rising hot asphalt per manufactUrees specifications, 7.) ScclionB: Fully adhere a Ityload Alproot`45 mil white cap sheet using hot asphalt per manufacturer's requironuits, 8.) Section A: Flood coat an(] graVCI LiSing #7 roof gravel and type IV asphalt at a rate of 60 pounds per square. 9.) Fabricate and Install all slicetmetal, flashing s and coping cap per Arrnko's requirements. 10.) (1can all trash and debris upon completion of the project. I 1.) provide a BS Roofing Services 2-year MRCA contractor's warranty and a 20-year marruNcturer's Warranty. Base bid: $151,295 P&P Bond: $2,013 Total Base bid: X15 ,30t1 0-8 It is "Agreed that An arriving at the alxwe price,; Roc labor and naiteriak, it IF, contemplated by the par tics that the:amnc will be paid to the order of (MS Mmlianical, Inc. at its place of business to Denton, Texas, fmimptly as 11mvidmi herein, and in the event same; is not sit paid we agms." to pay inwiest at twelve (12 %) peivent on ume wriorml frons its due dato and in ific,went the same in collected fluough snit or thitmigh and Attorney, the Notim. (:',)an or Bankruptcy Courn we agme to pay roww.nable colhelion expenscs, ticludi rig bul not Ifint left to altur Aley,q fees thereon. If it be,"otnes nccissmy in the lien to secine frin& tender this afrftt"M we hereby agree to reinibume CBS Mechanical, Inc. lot expciem, mcumd at the preparation of said hen the surn rag" $300.00, in addition to the foregoing nenonabi e collection expenses, Including but not IMMM to WtOAMCY's fccs, ChAS MECHANK"Al, ITOVIDES COMPRE1 IFNS IVE(A', N Els At, 11A1'3IL11Y, WORKFRS COM4'ENSA-1 ION, AU FOMOBIL,E LIAMUTY AND EXCESS, 1AAE111,11 Y INSURANCE, ("OVERA6E. A CERTIFICA] E, IS AVAILABLE ON REQUES]. F=aYnF FIFO) Tie.—M"171(—Z'1771 [i5Ws`7---- PER EXECUTED C'ONTRACT DOC U MENTS A xMT)17'W-sj 7M r1&T—KU77W-i-(;TC =715PT 70 Y, Any frimil Authorized above spo6fications involviug extra so,its will be execulcil only upon written orders and will becomean extra t;lrarge over and above the cstintatr Signature- All agrecinexias contingent uram strikes, accidents, or delays beyond our conmil Owner it) cam hie, Amnado and tether necessiny insurance. Our workers or Bally a,overcd by Workermen's Compimsairion lneurancea Note: This proposal may be withdrawn by us it not accepted within 3U days. 4he abovA, prices, specifications and conditions are sat cifitclwy andare, hereby accepted You ancauthorized to do the work as specrificil, Payment will be inade as outhued abovo. Signature:_­ Date of Acceptance: Signature: . . .... ...... EXHIBIT 2 Proposal 10j "lull :7 ROOFING SERVIC"ES A Division of C BS Mechanical, Inc. 5001 WFST' 0NlVERSlTY DR1Vl I7FNT`0N, TEXAS 76207 (940) 387.7566 FAX(940)387-3890 Attalla Davie, Saltsmaan City of Denton 940-349-7247 May 5, 2015 S "I'ftI;6 "!` ... ..._... ..._. __w._..._ _w__ _ ww._..............._.... M.... w..... _._..._..�,,....�,.........._.. JOBNA, ME:_ .............____.._...,... ........».,.,..._...,......._.. ...,..____.__m�M_.�_�_— ___°__ 869 S. Woodrow Denton Civic Center-Sections A & 11 t:':rrY SI' A "i'EP,A.7Jr)ZLI'C,,;f.;1f.Y6:': J(:iB1RM'ARON Denton,TX 76205 Denton, TX �1' A w rtv �A �04L31 5 94ti 02042315 :fi4 Wit Pre"zetby AdMit 1p Cirb,'".atiauv and cstiraratu,, f::r Provide taahari.ats aaael a ^rtaaitttna *a►t' t "6ba the fdrllcavwigj er Araal6cQ'�� I,) '1:'ear o t`and remove existing; roof systems down to Gypsum (leek, including; all base tlashing;s and parapet walls thrOUghout entire: field of roof`. 2) Clean and'retu"rove all dirt Bud debris from f::vympsurn deck. 3 Mechanically attach a new 211 pound base sheet using; 1.7" fasteners per Artnko "s requirements. 4.) Fully adlaeere 3.5" of Polylso oil non - tapered areas and install as 25`32" (overboard Using type IV asphalt per manufacturer's specifications. 5.) Adheres 80 nail SBS base street using, type IV asphalt. 6) Section A: Fully adhere a Flyload 150E cap sheet using; hot asphalt per manufacturer's specifications. 7,) Section t:3; Fully adhere a tlyload Alproof'45 null white cap sheet using:; hot asphalt per manufiacturer's rtugUir "erne,nts. 8.) Section A: Hood coat and gravel rasing; # #7 roof gravel and typo IV asphalt at a rate of 60 pounds per square. 9) fabricate and install all sh(;ennetal, tlashing,s and coping, cap per Annko's requirements, 101) Clean all trash and debris upon completion of the project. 11.) Provide a CBS Roofing Services 2 -year MR(:A contractor's warranty and a 2() -.year manufacturer's warranty, Base bid: $151,295 It is a ,, t�ri , n iin Atrtvrrtfr at the, above prices Lrn� aabor, and rnate.e�ivals it is contonplate Iryitte. pax tiesthat tire saure v✓ be paid t" the onlet of CBS Mechanical, Gtc at its place 'O brr mes's in Dentcu), Tunas, f7romptly as provided hereto, and in the event saute it not so paid we agree to pay interns ar twelve (12%) pert aat eaar same ranerunt ftv:nre its 4leree date and i❑ the cveart the %rrnc in coflacted tktacrut;9r unit of thrr'auyr,9t and Attorney, than probate Court or I'iankavptcry Q'Jtrrd, we a},me to flay reasonablo colleefion expenses, including but nw hamed to avontr y's fees thereon. tf [I I:YC',i:rYn7S"4 1'14'%.4fitiary' I'a7 fA)e hr;Nl a() SI:'N:,1.IrC r'rtttdM V.rnd0.",r' tf'tF� afrvA'Ce."rnPttt We rt.Crr ny amj,YV;Y', ", 1'l'7 dCP.nliYnfSC ", (tai M MG" uh1A1Cd G "'eat, rk9C.. (11M 4 "Ypfi.YVS;ew BBYi ur G "0".ft �r4 ti'14` (11'P'paYxM1triYMl ()f Mrar,r rle'.n rirE tiUlTl Ot �.r(tt,a.d }Q,), in ad4rrttY'ytl'Y I'.4Y lira f11(e nAn I�iL 6.YY'FAbl.. G'' }161ion e' pvnsQes, including but not limilod to attonruy'v (es. (.13S MECHANICAN.. PROVIDES COMPREHHNSIVU (I:M?k.At., LIA[IIL11 °Y, WORKERS COMPENSA "flO N, A.IPJY)MOBII_E UAIIa.,nrY AND EXCESS t.LAHrI..JTY INSURANCE (.,OVE6Y.AGF.. A d URTIFICArts IS A'VAlLABLt!:? ON rLl,OTST' aytana`rtt fla re rntta e as t,a nws. PER EXECUTE D CONTRACT iii3C1JME;NTS `AI' mmkinanlike rnaorrn.r acco nhng to t andard practices, Any altetafion an deviation from Authorized a6ovc free da��ariom uevcrWvrnp, cute t carsts wore be exccarirf only ulrcrn wt'tffle�dr otc'is;es Signature:. and ward lree ouue all cxwa charge over and above for estimate, A.dr aglernnt nts conintf ent upon vtrakev, ar.ciden s orde•lays, beyond our � Owner tai cant tire, tornado and other nme v ar insurance Our wro e.res or full (revered by Woukennou'r, Compensation Inswurn.e. spot This proposal may be withdrawn by gas it not accepted within ,.....__ :30 "the above prro —,, spectficartions and conditions are, satisfactory and are hetchy aeceptrod. You rue aut�ktartu•�r3 nt do the wa>r'k as �spcaJftrd. Payment will be made a, aettfinr i aberve. IC rYr tLBrC „ Date of Acceptance: wgr��tu r: EXHIBIT 2 TRi.-LAm'RoOFINC.'& WATERPROOFING Phone: (817) 247 65622 965 Enon Ave � Everman,Texas 76140 Atignst 14, 2015 '1 'o: David Saltsinan Proje& Civic Center Denton, 'I'exas 76205 Install Coal-'Uar Elastomeric Roofing System Scope of work: 'rotal S t62,500.00 Exclusion: No structural deck repairs, Masonry, plumbing gas and condensate lInes by others, I-IVAC unit work, bonding, wall panels, pipe support, painting Thank ' youjor the opportuni(y to proviele a quote for the abovese0pe ty'worh. I lease .fecal ftee to call itte i4th atty questions at 817 320 1250 Respectildly Alt.)rnitted, 1'r1 -Lam Roofing and Watei,proofing 817320 1250 EXHIBIT 2 Roof Management services, Inc. 11312 Indian 'Trail Dallas, TX 75229 Phone. (972) 278-7277 EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE ORDER THROUGH THE INTERLOCAL PURCHASING SYSTEM (TIPS) COOPERATIVE PURCHASING PROGRAM CONTRACT# 02042315 FOR THE PARTIAL REPLACEMENT OF THE ROOF AT THE CITY OF DENTON CIVIC CENTER BY WAY OF AN INTERLOCAL AGREEMENT WITH THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 5923- AWARDED TO CBS MECHANICAL, INC. IN THE AMOUNT OF $153,308). WHEREAS, pursuant to Ordinance 2011 -082, The Interlocal Purchasing System Program has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through The Interlocal Purchasing System Program at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 5923 CBS Mechanical, Inc. $153,308 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to The Interlocal Purchasing System Program for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with The Interlocal Purchasing System Program and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by The Interlocal Purchasing System Program, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to The Interlocal Purchasing System Program, and related documents herein approved and accepted. EXHIBIT 3 SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5923 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 STATE OF TEXAS § COUNTY OF DENTON § CONTRACT AGREEMENT #5923 BY AND BETWEEN CITY OF DENTON, TEXAS AND CBS MECHANICAL, INC. THIS CONTRACT is made and entered into this 15th day of September 2015, by and between CBS Mechanical,. Inc, a corporation, whose address is 5001 West University Drive, Denton, Texas 76207, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home -Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. WITHNESSETH: That for and in consideration of the payments, covenants and agreements contained herein, and under the conditions expressed in the bonds attached hereto, Contractor agrees with. the Owner to commence and complete the performance of the work specified within the agreement, in the amount of $153,308.00 and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide construction services in accordance with the specifications, requirements, terms, conditions, and agreements as incorporated herein for all purposes as "Exhibit A — Exhibit I". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Contractor Quote for Denton Civic Center Roof Renovation - Pricing (Exhibit "A ") (b) Negotiated Scope of Work and Services and Technical Requirements, Drawings, Graphs, Charts, etc. (Exhibit "B "); (Technical Specifications and Drawings are available at the Office of the Purchasing Manager and at 1'►tt / /www.ci of(lent,oii.c)mldc artsrwenis- services /dc artmen,ts - /materials - maaa emenlµ urchasin - dish °ibution - center- /bids -and- ro . osalslcnrrent-bids- uroposals (c) Contractor Payments and Performance Milestones (Exhibit "C "); (d) City of Denton Standard Terms and Conditions and Contractual Requirements (Exhibit (e) Special Terms and Conditions (Exhibit "E"); (f) Payment and Performance Bonds (Exhibit "F"); (g) Insurance Requirements and Documents from Contractor (Exhibit "G"); (h) Contractor's Business Information (Exhibit "H "); (i) Conflict of Interest Questionnaire (Exhibit "I"); 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 this written Contract, and then to the contract documents in the sequential order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." EXHIBIT 4 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CBS MECHANICAL, INC. By: AU1 IORI `F"D SIGNATURE TYPED NAME: Steve Kress TITLE: Vice President 940- 387- 7568(o) or 940 - 387- 3890(fl PHONE NUMBER skress @cbsmechanical.com E -MAIL ADDRESS AI 3 iI S.L By (. CITY OF DENTON, TEXAS A Texas Municipal Corporation On- ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY GEORGE C. CAMPBELL CITY MANAGER EXHIBIT 4 Exhibit A Contract Pricing, Details EXHIBIT 4 Proposal a ROOFING SERVICES A Division of C13S .Mechanical, Inc. 5001 WEST UNIVWITY DRIVE DENTON, Tr?XAS 76207 (940) 387 -7568 FAX (940) 387 -3590 Attn: David Saltsman I "I1n,twt�^�I�w%, w�u�ll:wrr-I�:ra t�r8 I"iJlarvt z Ci ^ of Denton 1940- 344 -7247 � 90aty 5, 2015 869 S. Woodrow 13entou Civic centel"eetians A & B t.ItY „ ANOZJI'arOlas: Kant rt014 'r Denton, TX 76205 - _ _ _. _ Denton, TX ',TIPS N• PANS BY: VAX. E.GwtAlr.; 0_2042315 441 :349 -7260 We h Reny S L ificaliva5 for � 1.) Tear otiand remove existing roof systems down to Gypsum deck, including all base flags and parapet walls throughout entire field of roof 1) Clean and remove all dirt and debris from Gympsum deck 3,) Mechanically affach a new 28 pound base sheet using 1.7” fasteners per Armko's requirements. 4,) Fully adbare, 3.5" of Polylso on riots- tapered areas and install a 251321' coverboard using type IV asphalt per manufucturc es specifications. 5,) Adhere 80 mil SBS base sheet using type N asphalt, .) Section A: hilly adhere a Hyload 1 550.E cap shed using hot'asphalt per mmufacturces specifkations. 7t) Section B: Fully adhere a Hyload Alpnoof 45 mil white cap sheet using hot asphalt per maoufWtuorer's requirements. R.) Section A: Flood coat and gravel using #7 roof gavel and type IV asphalt at a rate of 60 powuls per square. 9.) Fabricate and install all shoetme tal, flashing and coping cap per Arnxkds requirements. 10.) Clean all trash and debris upon completion of the project. I 1.) Provide a CBS Roofing Services 2 -yea' MPVA cunt metor'q warranty and a 20 -year umufactnrees warranty. Base bid: $151,295 P&P Bond: $4013 Total Base bid: F, andt a t ir70,v aI i ie d tar �Hrp wr n c q�uro awu�lcnue �f yG �i�Garim�X�a�'� �v� p�Mt�0. �f�ld� d, W+ai0.yp mn �r Uzi alb poi �7r K� �7hrrn Mara. pAq PNa r d r buaeomsst in Ike iiam^riruw„ ,prov xo as p"rMliviri laearrim„ uW in clot cmo w= is remit Ka Psi la wit wswe 0) W 10torrilt ice twet'v4 (11%) Imwiti4 r+iw ulna fan" ffm mi iu due dare 4,ul in Me avrot the faille in colt xal du m o %04 WkwoO said At400way, tlaa PrO arc 4 W, #1 aym BmA7K1p4u3 Caaaw, smr ngat to pay twaaa"tm an4adaaioa aapeor<a, rawelud"rway but cot Im`'raa A0 tti aitratae "s Itwcet alit mya. Irk bmruowes racecwwry tit Ile Thin to srrta4c f6wstwor this apArmtrs v m hathy sips; to+cada6+ tR.H*+ -�7 i44nriea l Mat, it" e+ca apos aasaalsiol hi tha potpumdoo tic SAW shad tlsoawnw of S:IN'I.III'I, ua 4d4hirasto the fbivoablil.pvfo a bltwarallaetim vxpeswrra, irialsodin latrs4W aillkell W Wf nkvs rat. CBS MIX HANICAI. PROVIDES COMPREHENSIVE GENERAL 11ABILnY. WORKERS COMPENSATION, AU7%IOBR E 11AB111ry AND FXCfSS LIABILITY INSOKANCt COYRRAGPL A t;WITICAn18 AVARABLE ON KrA CU13ST. a lwyea U$ 'M 0440 as Rw aw PM EUCUTED t.:(l'NTRAC.l' DOCR1iWtl: NTS wiAu stilt tabor iiuwwooWing�» c�a� will bed to teioi"ti� du xx '... fIt �otcwws7-ta gmrant wx 4 / � cAxwedo�uml�wtlnmaadcts Authorized ' I � . pat lxiebine sn it c over sad aaAYVa ehr ratimbete, Signature;' � .,_�...,,.,... Roo B * It"m^ Alb acs eutM1 cnt stnkea, aooldeota, ur delays E eydmd ourconttoa. Jacob (."tloatr" O woar to my Ian, wroWlif cad other llemiwry lowailm Our wtvkm or RdtS' oan,efrd by Watbrtamt c:omp"twion bum me: Note: This proposal may be withdramAn by clsa��� , us It not accepted within � days. Acceptance rt "I'bo above pww`e^.cs„ tdm:.i6lruplw`drwz wuud onodiliom em at6racudy And am hermlryv uat"I. You artaadip0TA to do the Work m sper9AtA Papneat will be nudcm out iaW abovo, aig'...nature:; ...— Date of ACI:�ptllaact�,�. i rTlt/re: w„ EXHIBIT 4 Exhibit B EXHIBIT 4 Scope of Work The intent of this Scope of Work is to obtain complete construction of the work identified with the technical specifications as detailed in the quote(s), and further identified within this contract. The work for which proposals are being solicited is described in detail in the Technical Specification contained in Exhibit 2, and the Drawings in Exhibit 3 of this RFP. The proposal submission shall accurately describe the Proposer's understanding of the objectives and scope of the requested construction and provide an outline of the process to complete the requirements of the project. Special Notice and Additional Requirement(s): 1. Additional safety precautions shall be instituted by the awarded contractor, as the work environment will be in an area where citizens and employees may be present, and work safety must be coordinated with the owner. 2. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal. EXHIBIT 4 SPECIFICATIONS FOR ROOFING AT CIVIC CENTER BUILDING FOR THE CITY OF DENTON PROJECT NUMBER: 20950825 -30 Annko Industries, Inc. Terms Registered Engineering Finn F-006498 The contents of this Competitive Sealed Proposal are considered to be private data of The City of Denton; therefore, the contents herein may not be used or reproduced without the specific written permission of The City of Denton. EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 1 SECTION 07530 2 COAL -TAR ELASTOMERIC ROOFING SYSTEM 3 4 b PART 1 - GENERAL 8 7 1.01 AREAS COVERED 8 0 Roof Area A 10 11 1.02 DEFINITIONS 12 13 ACM Asbestos Containing Materials 14 ANSI American National Standards Institute 18 ASCE American Society of Civil Engineers 10 ASTM American Society for Testing and Materials 17 CTEM Coal -Tar Elastomeric Membrane 18 EIP Ethylene Interpolymer 19 EPA Environmental Protection Agency 20 EPDM Ethylene Propylene Diane Monomer 211 EPS Expanded Polystyrene 22 EVT Equiviscous Temperatures 23 FM Factory Mutual 24 IBC International Building Code 25 KEE Ketone Ethylene Ester 28 NDL No Dollar Limit 27 NESHAP National Emissions Standards for Hazardous Air Pollutants 28 NRCA National Roofing Contractors Association 20 OSHA Occupational Safety & Health Administration 30 SBS Styrene - Butadiene -Styrene 31 SDI Steel Deck Institute 32 SMACNA Sheet Metal and Air Conditioning Contractors National Association 33 SPRI Single Ply Roofing Industry 34 UL Underwriters Laboratories, Inc. 3 38 1.03 REFERENCES (INCLUDING LATEST REVISIONS) 37 38 A. Comply with governing local, state, and federal regulations, safety standards, and codes. 30 40 B. Testing Laboratory Services: Test results shall meet or exceed established standards. 1 42 C. Underwriters Laboratories, Inc. (Roofing Covering): Class A fire hazard classification. 43 44 D. American Society for Testing and Materials (ASTM) 48 46 E. The National Roofing Contractors Association (NRCA) - Roofing and Waterproofing 47 Manual 48 40 F. Sheet Metal and Air Conditioning Contractors National Association ( SMACNA) - 50 Architectural Sheet Metal Manual 81 COAL. -TAR ELASTOMERI'C ROOFING SYSTEM 07530-1 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825.30 G. American Society of Civil Engineers — ASCE 7 1.04 INSTALLER QUALIFICATIONS A. Roofing installer must be: 1. Currently prequalified with the Owner in accordance with Owner's prequalification requirements. 2. Currently in good standing with the manufacturer. 3. Installer must be an experienced single firm specializing in the type of roofing repair and /or removal and replacement work required, employing only experienced workers for the class of work in which they are employed, having at least five (5) years successful experience on projects similar in size and scope and acceptable as applicators by the Project Manager. 4. Contractor must have successfully completed previous projects warranted by the manufacturer. B. It shall remain each Bidder's responsibility to determine his current status with the manufacturer's certification plan. 1.05 MANUFACTURER QUALIFICATIONS A. A qualified manufacturer is one that Is UL listed and has FM approvals for a membrane roofing system similar to that used for this project for a minimum of fifteen (15) years. 1.06 CONTRACT DOCUMENT QUALITY ASSURANCE A. In the case of an inconsistency between the drawings and specifications or within either document not clarified by addendum, the better quality or greater quantity of work shall be provided in accordance with the Project Manager's interpretation. 1.07 SUBMITTALS A. Samples and Manufacturer's Submittals: Submit prior to delivery or installation. 1. Samples of all roofing system components including all specified accessories. 2. Samples of all materials used on the project, which are not supplied by the membrane manufacturer, shall be submitted to the membrane manufacturer for written approval prior to work starting. 3. Submit samples of proposed warranty complete with any addenda necessary to meet the warranty requirements as specified. 4. Submit latest edition of manufacturer's specifications and installation procedures. Submit only those items applicable to this project. 5. A written statement from the roofing materials manufacturer approving the installer, specifications and drawings as described and /or shown for this project and stating the intent to guarantee the completed project. 6. Manufacturer's Equiviscous Temperatures (EVT) for the specified bitumens. B. Shop Drawings: Provide details of all perimeter conditions, projection conditions, and any additional special job condition details other than indicated in the drawings. C. Maintenance Procedures: Within ten days of the date of Substantial Completion of the project, deliver to the Owner two copies of the manufacturer's printed instructions regarding care and maintenance of the roof. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 EXHIBIT 4 CITY OF DENTON — CMC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825-30 1.08 DELIVERY, STORAGE, AND HANDLING A. Deliver materials in manufacturer's original, unopened containers and rolls with all labels intact and legible including labels indicating appropriate warnings, storage conditions, lot numbers, and usage instructions. Materials damaged in shipping or storage shall not be used. S. Manufacturer's packaging and/or roll plastic Is not acceptable for exterior storage. Tarpaulin with grommets shall be minimum acceptable for exterior coverings. All materials stored as above shall be a minimum of four inches (4 ") off the substrate, and the tarpaulin tied off with rope. C. Deliver materials requiring fire resistance classification to the job with labels attached and packaged as required by labeling service. D. Deliver materials in sufficient quantity to allow continuity of work. E. Handle and store material and equipment in such a manner as to avoid damage. Liquid products shall be delivered sealed, in original containers. F. Handle rolled goods so as to prevent damage to edge or ends. G. Select and operate material handling equipment so as not to damage existing construction or applied roofing. H. Moisture-sensitive products shall be maintained in dry storage areas and properly covered. Provide continuous protection of materials against wetting and moisture absorption. Store roofing and flashing materials on clean raised platforms with weather protective covering when stored outdoors. I. Store rolled goods on end. Protect materials against damage by construction traffic. K. The proper storage of materials is the sole responsibility of the contractor and any wet or damaged roofing materials shall be discarded, removed from the project site, and replaced prior to application. L. Comply with fire and safety regulations,- especially with materials which are extremely flammable and /or toxic. Use safety precautions indicated on labels. M. Products liable, such as emulsions, to degrade as a result of being frozen shall be maintained above 40° F in heated storage. N. No storage of materials shall be permitted on roof areas other than those materials that are to be installed the same day. Any exception must be in written form. O. The contractor is to erect a temporary chain link fence, minimum six feet (6') in height, around work area stage and kettles. Fence is to be secured on a daily basis. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-3 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 082530 1 1.09 SITE CONDITIONS 2 3 A. Job Condition Requirements: 4 1. Coordinate the work of the contractor with the work to be performed by other trades, 5 to ensure proper sequencing of the entire work. The contractor Is to schedule his '6 work so that adequate time is allowed for other trades to perform their work- 7 2. Apply roofing in dry weather: 8 3. Do not apply roofing when ambient temperature is below 45° F. 9 4. Proceed with roofing work only when weather conditions are in compliance with 10 manufacturer's recommended limitations, and when conditions will permit the work 11 to proceed in accordance with specifications. 12 5. Schedule the work so the building will be left watertight at the end of each day. Do 13 not remove more roofing materials than can be reinstalled in any working day. 14 6. Load placed on the roof at any point shall not exceed the safe load for which the roof 15 is designed. 16 7. All surfaces to receive new roofing shall be smooth, dry, and free from dirt, debris, 17 and foreign material before any of this work is installed. Competent operators shall 18 be in attendance at all times equipment is in use. Materials shall be stored neatly in 19 areas designated by the Project Manager. 20 8. The contractor is to be aware of the potential for roof leaks on the existing roof as a 21 result of ruptured blisters and /or roof mat damage caused by the vacuum process, 22 foot traffic, or material and equipment storage. The contractor is to take all 23 necessary precautions to prevent damage to the existing roof. All damage to the 24 existing roof that could result in roof leaks is to be repaired on a daily basis by the 25 roofing contractor. 26 9. The contractor shall follow local, state, and federal regulations, safety standards, 27 and codes for the removal, handling, and disposal of asbestos containing materials, 28 if present. When a conflict exists, follow the stricter document. 29 10. Due caution should be exercised so as not to alter the structural integrity of the 30 deck. When cutting through any deck, can: should be taken so as not to damage 31 the deck or any part of the deck, such as post tension cables, etc. 32 11. All kettles shall have a fume recovery system, automatic thermostat control, and 33 visible temperature gauge all in working order. 34 12. The contractor is to verify the location of all interior ducts, electrical lines, piping, 35 conduit, and/or similar obstructions. The contractor is to perform all work in such a 36 manner as to avoid contact with the above mentioned items. 37 13. Surface and air temperatures should be a minimum 40° F during applications of 38 cleaner and waterproof coating and remain above 40° F for a minimum of four (4) 39 hours following applications. Verify compatibility of cleaner with coatings, paints, 40 primers and joint sealers specified. Advise Project Manager of any problems in this 41 regard prior to commencing cleaning operations. 42 14. Temporary Sanitary Facilities: The contractor shall furnish and maintain temporary 43 sanitary facilities for employees' use during this project. These will be removed after 44 the completion of the project. All portable facilities shall comply with local laws, 45 codes, and regulations. 46 COAL -TAR ELASTOMERIC ROOFING SYSTEM 07630-4 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825.30 B. Protection of Work and Property: 1. Work: The contractor shall maintain adequate protection of all his work from damage and shall protect the Owner's and adjacent property from injury or loss arising from this contract. Contractor shall provide and maintain at all times any OSHA required danger signs, guards, and /or obstructions necessary to protect the public and his workmen from any dangers inherent with or created by the work in progress. All federal, state, and city rules and requirements pertaining to safety and all EPA standards, OSHA standards, NESHAP regulations pertaining to asbestos as required shall be fulfilled by the contractor as part of his proposal. 2. Property: Protect existing planting and landscaping as necessary or required to provide and maintain clearance and access to the work of this contract. Examples of two categories or degrees of protection are generally as follows: a) removal, protection, preservation, or replacement and replanting of plant materials; b). protection of plant materials in place, and replacement of any damage resulting from the contractor's operations. 3. Finished roof areas shall be protected from damage by the contractor during construction. 4. Twenty -four Hour Call: The contractor shall have personnel on call 24 hours per day, seven (7) days per week for emergencies during the course of a job. The Owner /Project Manager is to have the 24 hour numbers for the contact. Contractor must be able to respond to any emergency call and have personnel on -site within two (2) hours after contact. Numbers available to the Owner/Project Manager are to be both home and office numbers for: a) Job Foreman b) Job Superintendent c) Owner or Company Officer C. Damage to Work of Others: The contractor shall repair, refinish, and make good any damage to the building or landscaping resulting from any of his operation. This shall include, but is not limited to, any damage to plaster, tile work, wall covering, paint, ceilings, floors, or any other finished work. Damage done to the building, equipment, or grounds must be repaired at the successful contractor's expense holding the Owner harmless from any other claims for property damage and /or personal injury. D. Measurements: It will be the contractor's responsibility to obtain and /or verify any necessary dimensions by visiting the job site, and the contractor shall be responsible for the correctness of same. Any drawings supplied are for reference only. E. Use of Premises: 1. The contractor is advised that the Owner will occupy the building at all times, and the contractor must provide all safeguards required to protect personnel and to keep noise levels as low as reasonably possible for each operation. 2. The contractor shall: a) Coordinate work in such a manner as to not interfere with the normal operation of the building. b) Assume full responsibility for protection and safekeeping of products stored on premises. c) Agree to hold the Owner harmless in any and all liability of every nature and description which may be suffered through bodily injuries, including death of any persons by reason of negligence of the contractor, agents, employees, or subcontractors. COAL, -TAR ELA STOME IC ROCFINC S' a "IEM 07530-5 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 F. Cleaning and Disposal of Materials: 1. Contractor shall keep the job clean and free from all loose materials and foreign matter. Contractor shall take necessary precautions to keep outside walls clean and shall allow no roofing materials to remain on the outside walls. 2. All waste materials, rubbish, etc., shall be removed from the Owner's premises as accumulated. Rubbish shall be carefully handled to reduce the spread of dust. A suitable scrap chute or hoist must be used to lower any debris. At completion, all worts areas shall be left broom clean and all contractor's equipment and materials removed from the site. 3. All bituminous or roofing related materials shall be removed from ladders, stairs, railings, and similar parts of the building. 4. Debris shall be deposited at an approved disposal site. 1.10 SEQUENCING AND SCHEDULING A. Coordinate roofing schedule with work of other trades. B. Plan lay up of roofing membrane with respect to deck slope. Avoid situations where excessive drainage could pass into completed roofing. C. Maintain communication with roofing manufacturer's representative to inform of progress and to schedule periodic inspections. D. All penetrations shall be made in roof prior to beginning with roof installation. 1.11 WARRANTIES A. Roofing - Manufacturer Project shall be Installed in such a manner that the roofing material manufacturer will furnish a written twenty (20) year NDL type warranty with no exclusion for hail events containing hail stones up to and including four inches•(4 ") from the date of substantial completion of the completed project. Manufacturer issuing warranty shall provide historical data supporting hail resistance. B. Roofing - Contractor: The contractor, jointly with any subcontractors employed by him, shall guarantee the work required and performed under this contract will be free from defects in workmanship and materials, and that the building will be and remain waterproof for a two (2) year warranty period, after the Owner accepts the work as substantially complete. The warranty shall be in approved notarized written form, to obligate the contractor and his subcontractors, if any, to make good the requirements of the warranty. C. Warranty repairs shall be performed by a certified installer. The repairs shalt be performed in accordance with the manufacturer's written instructions and recommended procedures so as to not void the warranty. Repair of the system, including materials and labor, shall be done at no cost to the Owner. D. During the proposal period each Bidder shall make arrangements with the material manufacturer to provide the required warranty. Refer to SUBMITTALS Paragraph in this section for requirements concerning submittals of warranty. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-6 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825.30 PART 2 - PRODUCTS 2.01 GENERAL A. Compatibility: Provide materials that are recommended by manufacturers to be fully compatible with indicated substrates, or provide .separation materials as required to eliminate contact between Incompatible materials. B. All materials shall be furnished, specified, or approved in writing by the manufacturer issuing the warranty. C. All materials used on the project shall be asbestos free. D. Liquid -type auxiliary materials shall meet VOC limits of authorities having jurisdiction. 2.02 FINISH MEMBRANE A. The coal -tar elastomeric membrane (CTEM) shall be 60 mil overall calendered thickness. The membrane shall be a high - performance elastomeric membrane incorporating a DuPontTm ElvaloyO KEE (ketone ethylene ester), extended with coal -tar pitch and reinforced with polyester fibers as manufactured by Hyload, Inc., or approved equal. B. The coal -tar elastomeric membrane (CTEM) shall meet the following physical properties: Elongation 170 %, ASTM D 412; Tensile Strength 1500 Ibs/In2, ASTM D 412; Tear Strength 330 ppi, ASTM D 624; Density @ 70° F, 80 Ibs /f0; Low Temperature Flexibility, Pass, 37- GP -56M; and Water Absorption less than 0.1 %, 37 -GP -56M. 2.03 BASE FLASHING A. Base flashing shall be same material as the coal -tar elastomeric finish membrane (CTEM). 2.04 BITUMEN A. Shall be ASTM D 312 Type IV extra steep asphalt. 2.05 UNDERLAYMENT PLIES A. Shall be Underwriters Laboratory approved. B. Shall be premium grade, moisture resistant and flame retardant inorganic venting base sheet, asphalt coated on both sides and surfaced on one side with mineral granules, with a series of closely spaced 1/2" perforations spaced on 4" centers, ASTM D4897, Type 11 and ASTM D3672, Type II. C. Shall be twenty -eight pound (28 #) fiberglass base sheet, ASTM D4601, Type ll. D. Shall be nominal eighty -five (85) mil, smooth surfaced, SBS modified asphalt glass reinforced base sheet coated with flexible, SBS polymer- modified asphalt, meeting ASTM D6163, Type 1, Grade S. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-7 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 EXHIBIT 4 CITY OF DENTON — CPAC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 E, Rosin Sheathing Paper: For use as barrier layer between the wood deck and insulation; shall be rosin -sized sheathing paper meeting ASTM D 549 -74. 1. Physical Properties: The product shall be made of 114# Kraft specialty liner: Width, 6; Length, 500'; Weight, 105 Ibs per roll. 2.06 INSULATION A. All insulation shall be approved in writing by the membrane manufacturer as to thickness, type, and manufacturer. All insulation must be approved for the specific application, Underwriters Laboratory approved. B. Polyisocyanurate Roof Insulation: Insulation shall be a single layer of rigid polylsocyanurate foam board; total thickness and LTTR -value shall be a minimum of 3.5" = 20.5; meeting Federal Specification No. HH -1- 1972/1 or 2 with 20 psi minimum compressive strength and nominal 2.0 pcf density. Boards shall be surfaced on two (2) sides with non - asphaltic facer material. C. Factory Tapered Polyisocyanurate Crickets: Factory cut twenty -four inch by forty -eight inch (24" x 48 ") polyisocyanurate board cut to one -fourth inch (1/4 ") per foot slope used in conjunction with standard thickness of polyisocyanurate board to provide positive slope. 2.07 SUBSTRATE BOARDS A. All substrate boards shall be in compliance with Section 07215 Roof and Deck Insulation. B. Fiberboard: Shall be thickness of twenty -five thirty- seconds inch (25/32 "), R of 2.06, board size four feet by eight feet (4' x 9), impregnated six (6) sides with asphalt. 2.08 CANT STRIP A. Structural: Shall be wood where used for structural purposes meeting NRCA, FM Global and Underwriters Laboratory guidelines. B. Non - structural: Shall be wood fiber where used for non - structural purposes, conforming to ASTM C208 and C209. 2.09 ROUGH LUMBER A. All wood nailers, structural cants, curbs, and other miscellaneous rough carpentry, shall be lumber as recommended by NRCA, and Underwriters Laboratory guidelines. B. Vertical Wall Shimming Material: Shall be exterior grade plywood, gypsum core board, or concrete core board unless otherwise accepted by Project Manager. Thickness shall be as required for attachment or to make material flashing flush or level with offsets and /or transitions, minimum three - fourths inch (3/4 "). Proper selection of material is required to achieve UL guidelines. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-8 1 2 3 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 2.10 SEALANTS A. One -part Urethane Sealant: Sealant for use at coping joints, reglet joints, etc., shall be a o.ne- component, high performance, non - priming, non -sag, gun grade elastomeric polyurethane sealant designed for use in active exterior joints, ASTM C 920, shall meet the following physical and performance properties, or approved equal. Properties Movement capability, % Tensile strength, psi (MPa) Tear strength, pli Ultimate elongation at break, % Rheological, at 120° F (49° C) (sag in vertical displacement) Extrudability, 3 seconds Hardness, Shore A At standard conditions After heat aging (max Shore A: 50) Weight loss, after heat aging Cracking and chalking, after heat aging Tack -free time, hrs, (maximum 72 hrs) Stain and color change Bond durability,* on glass, aluminum, and concrete ±35% movement Adhesion* in peel, pli (min. 5 pit) Adhesion* in peel after UV radiation through glass (min. 5 pit) Results ±35 350 (2.4) 50 800 No sag Passes 25-30 25 3% None Passes Passes (no visible stain) Passes 30 Passes Artificial weathering, Xenon arc, 250 hours Passes Artificial weathering, Xenon arc, 3,000 hours No surface cracking Water immersion, 122° F (50° C) Passes 10 weeks with movement cycling *Primed for water Immersion dictated by ASTM C920. Test Methods ASTM 0719 ASTM D412 ASTM D1004 ASTM D412 ASTM C639 ASTM 0603 ASTM C661 ASTM C792 ASTM C792 ASTM C679 ASTM C510 ASTM C719 ASTM C794 ASTM C794 ASTM C793 ASTM G26 ASTM C1247 B, Silyl- terminated Polyether Sealant: Sealant shall be a thermosetting, solvent free, non- slump, self- fixturing, multipurpose structural sealant which shall meet the following physical and performance properties, or approved equal. Pronrtles Specific Gravity Viscosity Shear Strength (ASTM D -1002) Elongation @ break (ASTM D -412) Hardness Shore A (ASTM C -661) Tack free time (ASTM C-679) Low temperature flex ASTM D -816) Slump (sag) (ASTM C-697) Shrinkage (ASTM D -2453) Service temperature 2.11 FASTENERS 1.62 (13.5 lbs. /gallon) 800,000+ cps Brookfield RTV, TF spindle, 4 rpm 73° F. 400 psi+ (7 day ambient cure) 400 -550% (7 day ambient cure) 45 ±3 20 minutes Minus 10° F pass 1/4" mandrel Zero slump No measurable shrinkage (after 14 days) -40° F to 200° F continuous service A. Fasteners and fastening plates or bars shall be as recommended by the fastener manufacturer for the specific application. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-9 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825.30 B. Fastener for Wood Deck: Shall be a #14 fastener, fluorocarbon coated, with CR -10 coating. A minimum .200 diameter shank and .250 diameter thread. To be used with round pressure plates or bar, and having a fluorocarbon CRA 0 coating, when subjected to thirty (30) Kesternich cycles (DIN 50018) shows less than 10% red rust which surpasses FM Global Approval Standard 4470, or approved equal. Fasteners, plates, and /or bars shall be listed in the FM Global Approval Guide. C. Fastener for Cementitious Fiber Deck: Shall be a pre - assembled from coated steel with sell- anchoring tube nail of the correct length to embed the roof deck to a depth of at least one inch (1 "). Rib reinforced roofing disk shall be a diameter of two and seven- tenths inch (2.7 ") with locking staple, Twin Loc -Nail as manufactured by ES Products, or approved equal. Fasteners and washers shall be listed in the FM Global Approval Guide. 2.12 COLD PROCESS INSULATION ADHESIVE A. Shall be a dual component, reaction cure polyurethane adhesive, meeting the following physical properties, or approved equal. Density Compressive Strength Tensile Strength Water Absorption Closed. Cell Content R -value VOC Content Weight/Gallon 2.13 ROOFING AGGREGATE ASTM D 1622 3.38 lb /cf ASTM D 1621 20.6 psi @ 6% deflection ASTM D 1623 39.27 psi ASTM D 2842 0.40% ASTM D 6226 19.5% min. ASTM C 518 3.8 /inch (new) ASTM D 2369 <5 g/L Part 1 Component 10.32 lbs. Part 2 Component 8.54 lbs. A. ASTM D 1863 covers the quality and grading of crushed stone and water worn gravel suitable for use as coarse mineral aggregate. B. General Characteristics of Crushed Stone and Gravel: The stone and gravel at the time of application shall be hard, durable, surface dry (up to 2 %) by weight moisture content), free of clay, loam, sand, or other foreign substances, and shall conform to size grading and property requirements. C. Grading: The aggregate shall conform to sieve analysis as follows: §& VA Total Passina 3/4" 100 1/21' 90 to 100 3/8" 40 to 70 No. 4 0 to 15 No. 8 0 to 5 D. Physical Property Requirements: Moisture, crushed stone and gravel 2.0% max. Unit Weight (loose) 60 lbs. /cu. ft., min. Dust 0.5% max. Hardness, amount passing 20% max. No. 5 (3.36 mm) sieve when tested in accordance with ASTM D 1865 COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-10 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825-30 2.14 ASPHALT ROOF PRIMER A. Quick -dry asphalt -based primer for priming of asphalt roof surfaces, or approved equal. ASTM D 41 Flash Point 105° F Viscosity at 80° F (ASTM D 217) 50-60 K.U. Weight per gallon 7.4 pounds Drying time (to touch) Min. 4 hours 2.15 ASPHALT PLASTIC ROOF CEMENT A. Trowel- applied mastic used on flanges of gravel stops, stacks, vents, and similar applications, or approved equal. ASTM Flash Point Weight per gallon (approximate) Viscosity @ 80° F (ASTM D 217) % Non - Volatile (Fed. Test Method 141) % Specially Processed Bitumen % Total Solids, by Volume Dry film thickness of 1 gal. /15 sq. ft. Drying time Service Temperature, Extended Exposure Resistance to Oils & Solvents Resistance to Sunlight Resistance to Chemicals Effects of Weathering Water Resistance Under Good Drainage Conditions Under Continuous Submersion 2.16 FIBERGLASS COATED MEMBRANE D 4586 105° F 11 lbs. 270 -330 70% Min. 30% Min. 75% Min. 85 Mils 2 to 3 days -200 to +150° F Poor Good Good Slight chalking Excellent Fair A. A non - rotting, non - absorbent woven fiberglass membrane having a vinyl coating designed for membrane reinforcement for all roof repairs. Compatible with either tar or asphalt bitumens, having ten (10) open -weave squares per inch. 2.17 TERM INATION/PRESSURE BARS A. Aluminum strip shall be extruded channel bar with a mill finish, width one inch (1 "), thickness 0.100"t .008 ", leg height one - fourth inch (1/4 ") top and bottom, leg angle ninety degrees (90 "), for perimeter and curb anchorage, having predrilled holes six-inches (6 ") on center, as manufactured by Olympic Fasteners, or approved equal. 2.18 ELASTOMERIC SEALANT A. Multi- Component Polysulfide Sealant: Except as otherwise indicated, provide manufacturer's standard, non - modified, 2 -or -more-part, polyurethane- based, elastomeric sealant; complying with either ASTM C 920, Type M, Class 25, or FS TT- S- 00227E, Class A; self-leveling grade/type where used in joints of surfaces subject to traffic, otherwise non -sag grade/type, or approved equal. B. Durability: Less than 0.5 square inch adhesion /cohesion loss for three (3) samples of both mortar and aluminum; ASTM C 719 test procedure. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-11 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 C. Adhesion in Peel: Fifteen pound (15 #) peel strength and 10% maximum loss of bond to substrate; ASTM C 794. D. Bituminous Modification: Where joint surfaces contain or are contaminated with bituminous materials, provide manufacturer's modified type sealant which is compatible with joint surfaces (modified with coal -tar or asphalt as required). 2.19 SELF - ADHERING UNDERLAYMENT FOR TEMPORARY WATERPROOFING A. A premium heavyweight, minimum 60 mil, self- adhering underiayment, to use as a temporary waterproofing barrier. 2.20 DELIVERY AND STORAGE A. All materials shall be delivered with appropriate carton and can labels indicating appropriate warnings, storage conditions, lot numbers, and usage instructions. Materials damaged in shipping or storage shall not be used. 2.21 PRECAUTIONS A. Some of the indicated materials are extremely flammable and /or toxic. Use precautions indicated on can and carton labels. 2.22 MISCELLANEOUS MATERIALS A. Other materials shall be as specified, or of the best grade for the proposed use, as recommended by the manufacturer of said product. PART 3 - EXECUTION 3.01 REFERENCE A. In the instance of a conflict between these specifications and those of the manufacturer and/or current NRCA, Underwriters Laboratory and IBC guidelines, the more stringent specifications (better quality or greater quantity of work) shall take precedence. B. The manufacturer's Technical Specifications and current NRCA, Underwriters Laboratory and IBC guidelines shall be considered a part of this specification and shall be referred to for general application procedures and recommendations. C. Application of materials shall be in strict accordance with the manufacturer's recommendations and current NRCA, Underwriters Laboratory and IBC guidelines, except where more stringent requirements (better quality or greater quantity of work) are shown or specified. D. General Installation: 1. Comply with governing local, state, and federal regulations, safety standards, and codes. 2. Protect adjacent areas with tarpaulin or other durable materials. 3. Contractor shall prevent overspray, and be responsible for parking lot areas and /or adjoining areas not part of this contract. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-12 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825-30 4. Contractor shall be responsible for sealing, as required, all openings that may allow bitumen migration or drippage, i.e. pitch dams, envelopes, and filler strips. 5. Prepare surfaces according to manufacturer's or applicator's published instructions. All metal that is to receive bitumen, or come in contact with bitumen or adhesive, shall be first primed with appropriate primer. Any prefinished galvanized sheet steel that is to receive bitumen, or come in contact with bitumen or adhesive, shall be scored, scuffed or abraded before receiving primer application. 6. Use cleaning materials or primers necessary to render an acceptable surface /substrate. 7. All surfaces /substrates shall be clean and dry prior to application of materials. 8. Prior to application of felts and membrane, all foreign matter, gravel, etc., shall be removed from the insulation and/or substrate. Gravel or debris between the Insulation /substrate and plies is not acceptable. 9. Prior to application of flashing membranes, substrate shall be clean and free of any previously installed roofing materials. Contractor shall ensue; that all components of substrate be structurally sound before application of flashing materials. 10. Bitumen kettle shall have a fume recovery system, and visible thermometer to provide positive monitoring of the bitumen temperature when it is heated in accordance with manufacturer's instructions. 11. Ambient temperature shall be 40° F and rising. 12. The underlayment plies and field membrane are to be laid in the direction of maximum roof slope, working from bottom of slope toward ridge. 13. All roof areas will be picture framed with the 60 mil coal -tar elastomeric membrane (CTEM) as the system is being applied. The outer edge of the picture frame sheet shall extend approximately two inches (2 ") above the top of the cant. All and laps of the field sheets of the 60 mil coal-tar elastomeric membrane shall lap the picture frame sheet a minimum of eight inches (8 ") or the picture frame sheet side laps shall lap the field sheet a minimum of eight inches (8 "). 14. Wrinkles, buckles, kinks, and fishmouths are not acceptable when laying felt and membrane. 15. Dry voids of felt on felt or membrane on membrane are not acceptable. 16. All surfaces that are to receive the self- adhered membranes shall be primed with a fast drying asphaltic primer, except when self - adhered membrane is to be installed over a CTEM surface. 3.02 SUBSTRATE PREPARATION A. Tear -off: Remove all existing roof assembly down to the roof deck or original substrate. Substrate shall be smooth, free of debris, sharp edges, and other surface irregularities prior to starting roofing application. Substrate repair shall be performed as required to minimum of NRCA standards. B. Cementitious Wood Fiber Decks: 1. Damaged planks caused by membrane removal, moisture or deflection shall be replaced with planks similar in type and size in strict accordance with the deck manufacturer's recommendations. 2. All planks must be securely anchored to the supporting members in strict accordance with the deck manufacturer's recommendations. 3. Dry rosin -sized sheathing paper shall be tacked into place over the deck to prevent asphalt from dripping into the building. 4. It is required that insulation board be mechanically fastened to the deck with suitable fasteners as recommended by the manufacturer of the insulation. The insulation board is used to isolate the deck from the membrane. COAL-TAR ELASTOMER;IC ROOFING SYSTEM 0753 - 1 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 3.03 CATEGORY II (NON - FRIABLE) ASBESTOS CONTAINING MATERIALS (ACM) REMOVAL A. Owner and Contractor agree to exonerate, indemnify, defend; and hold harmless the roofing material manufacturer from and against all claims, demands, lawsuits, damages, expenses and losses incurred by Contractor's removal of asbestos - containing materials from Owner's building and work site. Contractor must conduct its operations according to applicable requirements including but not limited to those established by: 1. Occupation Safety and Health Administration (OSHA). 2. Environmental Protection Agency (EPA). 3. Department of Transportation (DOT). 4. State or Local Air Pollution Control Authorlties /Agencies. 5. State or Local Solid Waste or Hazardous Waste Authorities /Agencies. 6. State or Local Health Department(s). 7. State or Local Building Code Authorities. 8. Other federal, state or local agencies or authorities. B. Contractor or Owner shall perform appropriate inspections, surveys and file timely notifications to proper authorities prior to starting roof renovation or demolition activities. Inspectors, project planners, project managers, contractors and workers involved in the roof project shall have appropriate training, licenses and registrations. Contractor and Owner shall be responsible for determining and implementing regulatory compliance activities, including but not limited to work practices, engineering controls, personal protection, air monitoring, testing, hazard communication, material handling, record retention, and arranging for waste disposal /handling. C. Contractor must file a Uniform Hazardous Waste Manifest from proper landfill site for each load of asbestos containing material removed. Copies must be sent to Owner and material manufacturer /specifier. Transportation of waste shall be in accordance with applicable Department of Transportation (DOT) requirements. 3.04 ASPHALT HEATING A. Use low burner flames during initial melt - downs. Circulate asphalt after initial meltdown. 1. Maximum asphalt temperature shall be 25 °F below the flash point. B. Avoid prolonged heating of asphalt at high temperatures. Reduce the asphalt temperature to below 500 °F if asphalt is not being used for periods of four (4) hours or more. C. Kettle shall be free of contaminants. D. Application rates: Bitumen quantities for waterstop /tie-offs, flashings, miscellaneous detail applications, and minimum kettle capacity are not included in application rates. To account for these factors, add approximately twenty -five percent 25% additional bitumen on a total job average basis. 3.05 ROUGH CARPENTRY A. Nailers shall.be installed according to NRCA; Underwriters Laboratory, and IBC guidelines. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530 -14 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 B. Wooden milers shall be installed at gravel stops, drip edges, expansion joints, and on outside perimeter of building. C. Gravel stop and drip edge nailers shall be the same height as the new insulation being installed where required. D. Nailers shall be raised if necessary by anchoring an additional nailer of appropriate height to the existing nailer if the existing nailer is not to be replaced. E. Expansion joint nailers shall extend upward a minimum of eight inches (8 ") above finish roof height. F. Where parapet wall exists, specified vertical wall shimming material shall be installed beginning at roof height up to a minimum of twelve inches (12 ") above finished roof surface, or as detailed, to provide substrate for horizontal termination of roof to wall flashing system. G. Any lumber or shimming required for attachment, or to make material flashing flush or level with offsets and /or transitions, shall be incorporated in these specifications. 3.06 CANTS A. Provide full forty -five degree (45 °) cant strips (no partials) at all intersections of vertical and horizontal surfaces, such as walls, parapet walls, curbs, expansion joints, etc., and as recommended by membrane manufacturer. B. Cants shall provide a four inch (4 ") rise above the roofs surface. C. Toe of cant shall be level with the surface to receive new roof membrane and in all cases anchored according to NRCA, Underwriters Laboratory, and IBC guidelines. D. Cant strips shall be installed at the intersection of the deck and all vertical surfaces. E. If a wood cant is used where insulation exists, cant shall be toe nailed into treated wood nailer under cant the same height as insulation. 3.07 MECHANICALLY FASTENED BASE PLY SHEET OVER SUBSTRATE A. Substrate shall be covered with a specified base sheet mechanically fastened as follows: 1. Securement shall conform to the ASCE 7 criteria for wind uplift as dictated by wind zone applicable to location of project. Fasteners and fastening patterns shall be determined by building height, location and geographical area of the United States. It is the contractor's responsibility to consult current codes, publications, literature, and bulletins of IBC and the fastener manufacturer that are in effect at the time of this project. B. If slope dictates, underlayment plies shall be installed using the strapped method going with the slope as required by membrane manufacturer. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-15 EXHIBIT 4 CITY OF DENTON — CMC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 3.08 INSULATION - GENERAL A. Manufacturer's Instructions: In regard to attachment, the manufacturer's instructions or specifications shall determine the suitability for an application. Installation must meet ASCE 7 criteria and meet local governing building codes. B. Precautions: The surface of the insulation must not be ruptured due to overdriving of fasteners. C. Thermal Insulation boards shall be laid on the substrate in parallel rows with end joints staggered and butted as close as possible. All joints shall be tight and at the roof perimeter and roof penetrations, insulation shall be cut neatly and fitted to reduce openings to a minimum. All openings one -fourth inch (1/4 ") or larger shall be filled with insulation. D. Insulation shall be tapered or feathered at drains and scuppers to provide proper drainage. E. No more insulation shall be installed than can be covered by the completed roof system by the end of the day or the onset of inclement weather. 3.09 FULLY ADHERED INSULATION A. Specified insulation shall be bonded to the specified base sheet with a solid mopping of steep asphalt Type IV, as required by slope (NRCA), at the minimum rate of thirty pounds (30 #) t 20% per one hundred (100) square feet and immediately walked in place. 3.10 BASE SHEET PLY OVER INSULATION A. Base sheet ply shall be solid mopped at the nominal rate of thirty pounds (30 #) t 20% per one hundred (100) square feet using steep asphalt Type IV as required by slope, properly heated. Base sheet ply shall be applied in accordance with the manufacturer's recommendations and in accordance with general practices as set forth by the NRCA Roofing Manual. 3.11 APPLICATION OF UNDERLAYMENT PLY SHEETS A. Insulation shall be covered with one (1) layer of specified fiberglass ply sheet fully adhered. B. All layers shall be solid mopped in a uniform and continuous manner at the nominal rate of thirty pounds (30#) t 20% per one hundred (100) square feet using steep asphalt Type IV as required by slope, properly heated and applied within the Equiviscous Temperature (EVT) range. C. Apply adhesive no more than ten feet (10') ahead of each roll being embedded. D. Broom each ply from the unmopped side before adhesive cools. Ensure complete and continuous seal and contact between bitumen and ply sheets without wrinkles, including ends, edges, laps, fishmouths, or blisters. Broom width shall be thirty -four inches (34 ") minimum. Avoid walking on plies until adhesive has set. KOMI +� - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 EXHIBIT 4 CITY OF DENTON -- CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 E. Specified layers shall be applied in accordance with the manufacturer's recommendations and in accordance with general practices as set forth by the NRCA Roofing Manual. F. If slope dictates, underlayment plies shall be installed using the strapped method going with the slope as required by membrane manufacturer. 3.12 APPLICATION OF FINISH FIELD PLY ' A. Unroll at least ten feet (10') of the 60 mil coal -tar elastomeric membrane (CTEM) and position the sheet. The properly heated steep asphalt (per specification) should be applied at the rate of approximately thirty pounds (30 #) t 20% per one hundred (100) square feet with a mop just ahead of the roll of the CTEM to form a pool of asphalt into which the membrane is to be rolled. The roll of CTEM should push a puddle of asphalt ahead of it with no voids. Care should also be taken not to trap air under the membrane.. The pool of asphalt in front of the roll will eliminate entrapped air. B. The asphalt must be mopped so as to extend beyond both edges of the sheet. The amount of asphalt should be just sufficient for excess asphalt to squeeze out along the edges. C. If slope dictates, membrane shall be installed using the strapped method going with the slope as required by membrane manufacturer. D. Picture frame all roof areas with 60 mil coal -tar elastomeric membrane (CTEM) as finish membrane ply is being applied. Rectangular type projections should also be picture framed. 3.13 FIELD LAP SPLICE A. Coal -tar elastomeric membrane (CTEM) shall be Installed as above with side lap minimum three inches (3 "), no maximum. End laps shall be minimum eight inches (8 "), no maximum, and staggered a minimum of four feet (4'), no maximum. B. Field Lap Splice with Bitumen: The membrane shall be laid in the same direction as the base sheet ply, but the laps shall not coincide with the base sheet ply. While asphalt is still hot, pressure shall be applied to the laps with a trowel or similar tool to ensure complete contact with the asphalt, and a squeeze -out of bitumen shall be visible. The side laps in the 60 mil coal -tar elastomeric membrane (CTEM) should not be located above those in the base sheet ply, but located to one side or other to avoid excessive ply build -up. Lack of or no side lap bitumen squeeze -out is not acceptable. Contractor shall cut away dry material to dry material, and Install a minimum of twelve inch (12 ") wide membrane overlaid in hot bitumen. C. Field Seams/Laps: 1. All laps /seams, cross seams, T- jolnts, seams/openings at penetrations, or other details shall be sealed and checked daily, no variance. 2. Lans: All la s ¶shall be straight a d froe of wrinkles anal /or fishm uthus, no variance. COAL-TAR ELASTOMERIC ROOFING SYSTEM 07530-17 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2016 0825 -30 3.14 PERIMETER FASTENING A. Wood milers are required for perimeter gravel stops or drip edges. Field membrane and all plies shall be mechanically fastened on the vertical face of nailer, twelve inches (12 ") on center maximum. 3.15 EDGING FLASHINGS A. An NRCA - approved gravel stop /fascia system shall be Installed in strict accordance with published instructions to meet ANSI -SPRI ES -1 requirements. B. The 60 mil coal -tar elastomeric field membrane (CTEM) shall extend a minimum of one inch (11") below the base of the nailer, and be fastened six inches (6 ") on center. A metal edge of proper gauge and dimensions shall be mechanically fastened, using a continuous clip fastened six inches (6 ") on center, to the wood nailer over the membrane. The metal shall have a minimum of a three inch (3 ") flange, set in asphalt mastic and fastened into nailer a minimum of six inches (6 ") on center, and a minimum of a four inch (4 ") fascia (match existing). The lower elevation of the metal edge shall extend a minimum'of one inch (1 ") below the juncture of the bottom edge of the wood nailer and adjoining wall surface. The metal edge shall have a minimum of one inch (1 ") gravel stop. C. All metal coming In contact with bituminous material shall be primed. Strip metal edge flange with one strip of Type IV fiberglass felt set in hot bitumen extending inward from the lip of the gravel guard a minimum of three inches (3 ") past metal flange. Strip in fiberglass felt with 60 mil coal -tar elastomeric membrane (CTEM) flashing from the lip of the gravel guard to a minimum of three inches (3 ") past the edge of the fiberglass undertayment using hot bitumen. At the leading edge of the CTEM along the lip of the gravel guard, a liberal bead of silyl - terminated polyether sealant shall be applied. 1. NOTE: If internal flange of metal edge detail is tapered, CTEM self- adhered membrane shall be used in lieu of the 60 mil CTEM. Any laps of the CTEM self- adhered membrane shall be covered with a four inch (4 ") wide piece of the 60 mil CTEM field membrane centered over the lap, hot -air welded and extending the full length of the lap. At the top leading edge where the self - adhered CTEM membrane does not have a selvedge edge for welding CTEM to CTEM, a liberal bead of silyl- terminated polyether sealant shall be applied. D. The coal -tar elastomeric membrane (CTEM) finishing strip shall have a minimum of four inch (4 ") lap joints that are staggered from any joints in the gravel guard. 3.16 SURFACE FINISH A. Flood Coat and Aggregate: Shall be applied at the minimum rate of five hundred pounds (500 #) per one hundred (100) square feet set in hot (liquid) flood coat of steep asphalt Type IV applied at the minimum rate of sixty pounds (60 #) per one hundred (100) square feet. 3.17 OVERNIGHT SEAL A. Provide temporary weather protection during interval between demolition and removal of existing construction on exterior surfaces and installation of new construction to ensure that no water leakage or damage occurs to structure or interior areas of existing building. COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-18 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 1 B. Installation shall be performed according to accepted roofing practice as outlined in the 2 NRCA Roofing Manual. 3 4 5 6 END OF SECTION 07530 COAL -TAR ELASTOMERIC ROOFING SYSTEM 07530-19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 SECTION 07600 SHEET METAL AND MISCELLANEOUS ACCESSORIES PART 1 - GENERAL 1.01 SUMMARY A. Section Includes: 1. Provide flashing and sheet metal components for moisture protection. 2. Related accessories. 1.02 DEFINITIONS ACM ASCE ASTM CTEM EIP EPA EPDM EPS EVT FM IBC KEE NDL NESHAP NRCA OSHA SBS SDI SMACNA UL 1.03 SUBMITTALS Asbestos Containing Materials American Society of Civil Engineers American Society for Testing and Materials Coal -Tar Elastomeric Membrane Ethylene Interpolymer Environmental Protection Agency Ethylene Propylene Diene Monomer Expanded Polystyrene Equiviscous Temperatures Factory Mutual International Building Code Ketone Ethylene Ester No Dollar Limit National Emissions Standards for Hazardous Air Pollutants National Roofing Contractors Association Occupational Safety & Health Administration Styrene - Butadiene - Styrene Steel Deck Institute Sheet Metal and Air Conditioning Contractors National Association Underwriters Laboratories, Inc. A. Product Data: 1. Submit shop drawings, product data and mockups of all sheet metal. 1.04 QUALITY ASSURANCE A. Comply with governing local, state, and federal regulations, safety standards, and codes. Provide products of acceptable manufacturers in satisfactory use in similar service for five (5) years. Use experienced installers. Deliver, handle and store materials in accordance with manufacturer's instructions. B. Reference Standards: Applicable portions of ASCE, SMACNA, ASTM, and NAAMM publications. SHEET METAL AND MISCELLANEOUS ACCESSORIES 07600-1 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825-30 1.05 WARRANTIES A. Manufacturer's Product Warranty: Submit manufacturer's ten (10) year labor and material warranty signed by the manufacturer's authorized official, guaranteeing to correct failures in product which may occur during the warranty period, without reducing or otherwise limiting any other rights to correction which the Owner /Project Consultant may have under the contract documents. Failure is defined to include product failure which leads, to interruption of a watertight installation. Correction may include repair or replacement of failed product. B. Contractor's Warranty Period: For roofing flashing and sheet metal, provide a written warranty which shall warrant work to be free of leaks and defects in materials and workmanship for two (2) years, starting from date of substantial completion. C. Defects of the sheet metal occurring during the warranty period shall be promptly corrected by the contractor, and defects of the roofing shall be promptly corrected by the manufacturer at no additional cost to the Owner. Upon notification from the Owner or the Owner's representative that evidence of a defect exists, the responsible party shall immediately inform the Owner's representative of the date on which corrective work will be scheduled, and shall notify the Owner's representative when the corrective work has been completed. PART 2 - PRODUCTS 2.01 SHEET METAL MATERIAL A. Hot - dipped Galvanized Steel for use as continuous clips: Minimum 22- gauge, G -90, hot - dipped galvanized metal, commercial quality, ASTM A 653/A 653M. B. Prefinished Galvanized Sheet Steel (where visible from the ground): Shall be 24 -gauge flat stock, prefinished with Kynar finish meeting ASTM A 446, forty-five and one -half inches to forty -eight inches width by one hundred twenty inches in length (45-1/2"- 48" x 120 ") for use as new metal edge gravel guard, cover plates, downspouts, gutters, coping and miscellaneous metal. C. Stainless Steel: QQ -S -766, Class 304 or 316; or ASTM A 167, Type 304 or 316; form and condition most suitable for the purpose. D. Prefinished Aluminum: Shall be that most suitable for the purpose. E. All existing sheet metal shall be replaced with new metal of like gauge and type, or as specified on drawings. F. All prefinished metal color shall be as selected by Owner /Architect from manufacturer's full range of colors, including metallics. 2.02 FASTENERS A. Fasteners shall be same metal as flashing /sheet metal, or other non - corrosive metal as recommended by sheet manufacturer for the specific application. Match finish of exposed heads with material being fastened. SHEET METAL AND MISCELLANEOUS ACCESSORIES 07600-2 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825-30 B. Fasteners and fastening plates or bars shall be listed in the FM Global Approval Guide. C. Fastener for Brick: Shall be one - fourth inch by two inches (114" x 2 "), zinc with plated steel or stainless steel nail, one piece unit, flat head. D. Screws: Self- taping sheet metal type with neoprene washer, as appropriate. E. Pop Rivets: Full stainless steel Series 42 or 44, as appropriate. F. Continuous Clip: Concealed hold -down clip type; of same materials as coping, gravel guard, sized to suit application. Use a continuous clip, minimum 22 -gauge G -90 galvanized. 2.03 RELATED MATERIAL A. Plastic Cement: FS SS -C -153, cutback asphalt type. B. Solder: QQ -S -571 composition best suited for purpose; use high tin content, minimum 60/40, for stainless steel and monel alloy. C. Copper, Sheet, and Strip: QQ -C -576, ASTM B 370, light cold -rolled temper, minimum 16 ounce. D. Sealant (for Sheet Metal): One - component polyurethane, conforming to requirements of FS TT- S -230C, non - staining and non - bleeding. E. Miscellaneous Materials: 1. Downspout Boots: Provide and install cast iron by Neenah Foundry Company, or pro- approved equal. 2. Splash Blocks: Concrete, 3000 psi, 28 days. Provide and Install with protection pads at all downspouts. Dimensions shall be a minimum eighteen inches wide by thirty -six inches long (18" x 36 "). 3. Metal Accessories: Provide and install sheet metal clips, straps, anchoring devices, and similar accessory units as required for installation of work, matching or compatible with material being installed, non - corrosive, size, and gauge required for performance. PART 3 - EXECUTION 3.01 INSPECTION A. Verify roof openings, curbs, pipes, sleeves, ducts or vents through roof are solidly set, cant strips and reglets in place, substrates are smooth and clean and nailing strips located. B. Verify membrane termination and base flashings are in place, sealed and secure, prior to metal installation. C. Beginning of installation means acceptance of conditions. 3 EET M T°AL AND MISCELLANEOUS ACCESSORIES 07600 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX - PROJECT NO. 2015 0825 -30 3.02 PREPARATION A. Field measure site conditions prior to fabricating work. Provide all shop drawings and mock -ups one month prior to installation to the Owner /Project Consultant for approval. B. Install starter and edge strips and cleats before starting Installation. 3.03 FABRICATION - GENERAL A. Shop - fabricate work to greatest extent possible. Comply with details shown, and with applicable requirements of SMACNA "Architectural Sheet Metal Manual" and other recognized industry practices. Fabricate for waterproof and weather- resistant performance; with expansion provisions for running work, sufficient to permanently prevent leakage, damage or deterioration of the work. Form work to fit substrates. Comply with material manufacturer's instructions and recommendations. Form exposed sheet metal work without excessive oil- canning, buckling, and tool marks, true to line and levels as indicated, with exposed edges folded back to form hems. B. Form sheet metal on bending brake. C. Form materials with straight lines, sharp angles and smooth curves. D. Fold back edges on concealed side of exposed edge to form hem (1/4" minimum). E. Weld or solder joints on parts that are to be permanently and rigidly assembled. F. Limit single -piece lengths to ten feet (10'). G. Fabricate comer pieces with eighteen inch (18 ") extensions, mitered and sealed by forming as one piece. H. Where installing flashing directly to masonry or dissimilar materials, backpaint with bituminous paint. I. Install new metal rooftop projections. New rooftop projection details shall be as recommended in NRCA or SMACNA handbooks. All rooftop projections shall be cleaned, all joints sealed, and painted with a rust inhibitive paint. All sheet metal shall be sealed and watertight. K. Metal work should be secured so as to prevent damage from buckling or wind. Where clips are shown, fabricate as detailed. L. All metal to receive bitumen or adhesive shall be first primed with asphalt primer. M. All prefinished metal shall be sanded and /or abraded prior to receiving primer. N. Separations: Provide for separation of metal from non - compatible metal or corrosive substrates by coating concealed surfaces at locations of contact, with bituminous coating or other permanent separation as recommended by manufacturer /fabricator. SHEET METAL AND MISCELLANEOUS ACCESSORIES 07600-4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 O. Bed flanges of work in a thick coat of bituminous roofing cement where required for waterproof performance. 3.04 INSTALLATION A. General: All sheet metal termination to vertical wall shall have a through wall with receiver installed on masonry walls or prefabricated "Z" bar flashing pre - installed to fluid applied wall finished prior to installation of sheet metal termination. This applies to edge metal, base flashing closures and all vertical surface intersections. Refer to NRCA, SMACNA, and metal manufacturer's guidelines. B. Gravel Guard /Fascia: 1. Shall be installed with expansion joints, ten feet (10') on center, one - fourth inch (1/4 ") expansion leeway, with a cover plate. 2. Form sections identical to profiles as shown or approved similar, to match existing building. 3. Fabricate corner pieces with minimum eighteen inch (18 "), maximum forty -eight inch (48 ") extensions, formed and sealed with rivets and sealant, as one piece. 4. Hem exposed edges one -half inch (1/2 ") minimum. 5. Backpaint flashing in contact with masonry or dissimilar materials with bituminous paint. Surface sand before applying primers. 6. Integrate flashing in a manner consistent with detailing. 7. Provide and install continuous clip, minimum 22 gauge. 8. Apply sealant at horizontal juncture of gravel guard metal to exterior vertical wall. 9. Shall be fabricated in accordance with published details. 10. Install bead of sealant at metal edge juncture at exterior wall surface. C. Counterflashing: 1. Provide and install new two -piece sheet metal counterflashing as required for a permanent watertight installation. 2. Saw cut brick mortar joint to receive friction fit reglet and removable counterflashing as detailed in SMACNA 7th Edition Figure 4 -4D. 3.05 FINISH A. Backpaint concealed metal surfaces with bituminous paint where expected to be in contact with cementitious materials or dissimilar metals. Exposed surfaces to be provided with a factory applied fluorocarbon Kynar finish meeting ASTM A 446 and AAMA specification 605.2 for high performance coating. B. New 24 -gauge hot - dipped galvanized metal shall be painted on all locations visible from the ground with an industrial grade paint as selected by Project Manager from manufacturers full range of colors, including metallics. Galvanized metal surface must be properly prepared by removing all oil, grease, and /or protective mill coatings by solvent cleaning surface in accordance with SSPC -SP1, and according to paint manufacturer's recommendation, to ensure proper adhesion of paint to metal. END OF SECTION 07600 SHEET METAL AND MISCELLANEOUS ACCESSORIES 07600-5 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBIT 4 CITY OF DENTON — CIVIC CENTER BUILDING, DENTON, TX PROJECT NO. 2015 0825 -30 ROOF PLANS/DETAIL DRAWINGS 1.01 ROOF PLANS A. Any drawings supplied are for reference purposes only. Dimensions, penetrations, curbs, etc. must be field verified. Those shown are typical but may not be all inclusive, and contractor shall be responsible for the correctness of same. Any existing insulation thickness, deck type or other details shown on the drawings shall be subject to contractor confirmation. 1.02 DETAIL DRAWINGS A. The enclosed details for this project are intended primarily to present the proper installation of the membranes used for waterproofing at fleshings, perimeter closures, roof projections, etc. Specific underlying construction configurations, such as walls, nailers, wood backing, structural steel, etc., which may currently be in place may or may not be accurately depicted on the attached details. Unless specifically called out in the accompanying written specifications, or where a detail is noted "AS DRAWN ", and /or proper roofing and construction practices are not being followed, underlying construction configurations are to remain unchanged from those In place on the building prior to this reroofing. END OF SECTION ROOF PLANS/DETAIL DRAWINGS -Pnp4 No o lDU K— A 'eoo "so■p'�n�� X1�Np1N30 yr =As NMVHG 133HIS A3NNDIOW 1SV3 N 9w9z�eo asVa U31MO OIMD O NQJ.N3C3 M "0 W'ON Ja3rO8d aoj 133road Mile ..,4 EXHIBIT 4 Exhibit C Contractor Payment and Performance Milestones EXHIBIT 4 1. INVOICES AND PAYMENT, PROCESSING: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for Payments: Contractors are encouraged to, arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing:com. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of Herman Lawson, City of Denton Facilities Management, 869 South Woodrow, Denton, TX 76205. The copy may also be emailed to Mr. Herman Lawson at herman.lawson@cityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payment within the first five days of the month, and submitted on the AIA Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling #95 -0.07 and #95 -0.09. 3. PAYMENT APPLICATIONS AND PAYMENTS TO CONTRACTORS: A: Upon presentation of valid payment requests invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety -five percent (95 %) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not EXHIBIT 4 later than thirty (30) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless such excess shall have been approved by the Owner, and Owner's Representative, and in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Release of Liens and Certificate of Contractor shall be accomplished in accordance with Article 5.3 of the Standard Terms and Conditions. 5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS: The Contractor shall pay each materialman, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each materialman or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and/or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages The time of the completion of construction of the project is of the essence of the contract. Should the Contractor neglect, refuse or fail to complete the construction within the time herein agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event EXHIBIT 4 and in view of the difficulty of estimating with exactness damages caused by such delay, the Owner shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of FIVE HUNDRED DOLLARS 500.00. per day for each and every day, including weekends, that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty; if the amount due and to become due from the Owner to the Contractor is insufficient to pay in full any such liquidated damages, the Contractor shall pay to the Owner the amount necessary to effect such payment in full: Provided, however, that the Owner shall promptly notify the Contractor in writing of the manner in which the amount retained, deducted or claimed as liquidated damages was computed. C. Cumulative Remedies Every right or remedy herein conferred -upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. EXHIBIT 4 Exhibit D EXHIBIT 4 CITY OF DENTON GENERAL CONDITIONS FOR BUILDING CONSTRUCTION ARTICLE I GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the Owner and the Contractor, these General Conditions and other supplementary conditions included by special provisions or addenda, drawings, specifications, addenda issued prior to execution of the Contract, other documents listed in the Contract, and Amendments issued after execution of the Contract. For purposes of these General Conditions, an Amendment is: (1) a written Supplemental Agreement to the Contract signed by authorized representatives of both parties; (2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or (3) a written order for a minor change in the Work issued by the Architect/Engineer as described in Paragraph 7.3. The Contract Documents also include bid documents such as the Owner's Instructions to Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents, and any other documents, exhibits or attachments specifically enumerated in the Building Construction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Contractor. b) THE CONTRACT The Contract Documents, as defined in Paragraph 1. 1, are expressly incorporated into and made a part of the formal Building Construction Services Agreement between the. Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to collectively in these General Conditions as the "Contract "). The Contract Documents represent the entire and integrated agreement between the Owner and the Contractor and supersede all prior negotiations, representations or agreements, either written or oral. The terms and conditions of the Contract Documents may be changed only by an Amendment. The Contract Documents shall not be construed to create a contractual relationship of any kind: (1) between the Architect/Engineer and Contractor; (2) between the Owner and a Subcontractor or Sub - subcontractor; or (3) between any persons or entities other than the Owner and Contractor. The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect/Engineer's duties. EXHIBIT 4 c) THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor, or any Subcontractors, Sub - subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. d) THE PROJECT The Project is the total construction more particularly described in the Building Construction Services Agreement, of which the Work performed under the Contract Documents -may be the whole or a part of the Project and which may include construction by the Owner or by separate contractors. All references in these General Conditions to or concerning the Work or the site of the Work will use the term "Project," notwithstanding that the Work may only be a part of the Project. e} THE DRAWINGS The Drawings (also known as the "Plans ") are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. fl THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, performance of related services, and other technical requirements. g) THE PROJECT MANUAL The Project Manual is the volume or volumes which contain the bidding requirements, sample forms, General Conditions for Building Construction, special provisions, and Specifications. The Project Manual may be modified by written addendums issued by the Owner during bidding, in which case the written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated by the Owner in writing. h) ALTERNATE An Alternate is a variation in the Work on which the Owner requires a price separate from the City Building General Conditions Base Proposal. If an Alternate is accepted by the Owner, the variation will become a part of the Contract through the execution of a change order or amendment to the Contract and the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner, and later deleted prior to any Work under the alternate being performed or materials delivered to the Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the Contractor's Bid. i) BASE Proposal The Base Proposal is the price quoted for the Work before Alternates are considered. j) HAZARDOUS SUBSTANCE The term Hazardous Substance is defined to include the following: EXHIBIT 4 (1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non- friable;. (2) any polychlorinated biphenyls ( "PCBs "), or PCB - containing materials, or fluids; (3) radon; (4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; (5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its condition, concentration or area of release could have a significant effect on human health, the environment, or natural resources; (6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(1) (including those defined by Section 9001(1) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and (8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic substance as those or similar terms are defined under any federal, state, or local environmental laws, rules, or regulations. k) OTHER DEFINITIONS As used in the Contract Documents, the following additional terms have the following meanings: (1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials, appurtenances and other expenses to complete in place, ready for operation'or use; (2) "shall" means the action of the party to which reference is being made is mandatory; (3) "as required" means as prescribed in the Contract Documents; and (4) "as necessary" means all action essential or needed to complete the work in accordance with the Contract Documents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. EXHIBIT 4 (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including subsurface conditions as described and identified in the Geotechnical Report, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. ".l "he Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent, with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. (d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. (e) Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. (f) The Drawings and Specifications are intended to agree with one another, and Work called for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both. Specifications shall govern materials, methods and quality of work. In the event of a conflict on the Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and large scale drawings shall govern over small scale drawings. Convict between two or more dimensions applying to a common point shall be referred to the Architect/Engineer/Engineer for final a justment. if discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work, or within or between other Contract Documents, the Contractor shall not perform such Work without having obtained a clarification from the Architect/Engineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or the Specifications disagree within themselves or with each other; the Base Bid will be based on the rnost expensive combination of quality and quantity of Work indicated. (g) Deviations from Contract Documents shall be made only after written approval is obtained from Architect/Engineer and Owner, as provided in Article 7. (h) The intention of the Contract Documents is, to include all materials, labor, tools, equipment, utilities, appliances, accessories, services, transportation, and supervision required to completely perform the fabrication, erection and e eeution of the Work in its final position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; (3) addenda, with those addenda of later date having precedence over those of an earlier date; EXHIBIT 4 (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifications and Drawings. 1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. 1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are: (1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.10), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses; (3) the titles of other documents published or used by the Owner as manuals or official policy statements; or (4) proper nouns or other words required under standard grammatical rules to be capitalized. ARTICLE 2 THE OWNER 2.1 DEFINITION OF OWNER The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representatives. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER (a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish any environmental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. EXHIBIT 4 (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid. delay in the orderly progress of the Work. It is incumbent Ripon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3. 10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including redeliveries by the Owner to comply with the current schedule. (d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies of the Drawings and Specilications for bid purposes and onto .hard copy approved by Building Inspections upon execution of the Contract. Contractor may obtain . additional copies by paying the cost of additional printing or reproduction. (e) The obligations described above are in addition to other duties and responsibilities of the Owner enumerated in the Contract Documents and especially those in respect to Article 6 (Construction by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11 (Insurance and Bonds). (f) The Owner shall forward all instructions to the Contractor through the Architect/Engineer, except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as described in Paragraph 2.4. (g) ' employees, . consultants may be present at the Project site during The Owner's, ern to c+�s, agents, and l performance of the Work. to assist the .Architeoffingzneer in the performance of the Architcct/l ngineer's duties and to verify the Contractors record of the number of workmen employed on the Work, their occupational classification, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work., or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within twenty (20) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal,'or equitable remedies the' Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional services and expenses made necessary by the fail tire or refusal of the Contractor from payments then or therealer due to the Contractor. The cost of correction is subject to verification (but not approval) by the Architect/Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner. EXHIBIT 4 2.5 NOTICE TO PROCEED After final execution of the Contract and receipt and approval u f the required performance and payment bonds and evidence of required insurance, the Owner will issue a written, notice topi-oceed with the, Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason. ARTICLE 3 THE CONTRACTOR 3.1 DEFINITION OF CONTRACTOR The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Contractor shall carefully check, study, and compare the Contract Doc unients, with each other and shall at once report to the Architect/Engineer in writing any inconsistency, ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The Contractor shall also i 'er out the Work. The verify all dimensions, field measurements, and field conditions b brelayingo Contractor will be held responsible for any knownor reasonably discovered subsequent error, omission, conflict, or discrepancy which might have been avoided by the above-described check, study, comparison, and reporting. In the event the Contractor continues to work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists without obtaining such clarification or resolution or commences an item of the Work without giving written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check, study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the Contract Documents, without any increase to the Contract Sum or Contract Time. The Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or Con-tract Time. (b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth specific instructions concerning these matters. (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub-subcontractors, and their respective agents and employees, and EXHIBIT 4 any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work required throughout full be ofaquality that will bring only first class results. Meehanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed prounptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any way eliminate the Architect/Engineer's responsibility to the Owner under the Architect/Engineer /Owner Agreement. (e) Any Contractor, Subcontractor, Sub - subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor; sub - subcontractor or separate contractor without the Contractor having given written notice to the Architect/Engineer of the existence of any known or reasonably discovered faulty surface or condition in the surface that prevents achieving the duality of workmanship specified by the Contract Documents and without having obtained the prior approval of the Architect/lIngine'er and the Owner to proceed is deemed to have accepted the surface or condition in the surface as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre-approved by the Architect/Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time. (f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the Contractor. The Contractor is solely responsible for any errors made, in establishing or maintaining proper grades, lines, levels, or benclimaxks. Each Contractor for his own Work shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the Owner, establish and maintain adequate horizontal and vertical control. 3.4 LABOR AND MATERIALS (a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the Owner, the (,contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat:, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. EXHIBIT 4 (b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the employment relates, to all labor hired for the Project in the following order: (1) to bona fide residents of the City of Denton, Texas; (2) to bona fide residents of the County of Denton, Texas; (3) to bona fide residents of the State of Texas; (4) to bona fide residents of the United States. 3.5 WARRANTY (a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good and workmanlike manner and that all materials and equipment furnished under the Contract will be of good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will otherwise conform to the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, will be considered defective or nonconforming. The Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. THE GENERAL WARRANTY PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE- EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF THE LATENT DEFECT. (b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under the Contract Documents. 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, purguant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. EXHIBIT 4 3.7 PERMITS, FEES AND NOTICES (a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits, and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department. (b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of governmental entities or agencies applying to performance of the Work. (c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor shall promptly notify the Architect/Engineer and the Owner in- writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or rules and regulations without notifying the Architect/Engineer and the Owner, the Contractor shall assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work and any other Work in place that may be adversely affected by the corrective work. 3.8 ALLOWANCES (a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for the amounts identified in the Contract and by persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities against which the Contractor makes reasonable objection. (b) Unless otherwise provided in the Contract Documents: (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment delivered at the site less all exempted taxes and applicable trade discounts; (3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, prof t, and other expenses contemplated for stated allowance Work; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect: (i) the difference between actual costs and the allowances under Clause (b) (2); and (ii) changes in Contractor's costs under Clause (b) (3); EXHIBIT 4 (5) the Owner retains the right to review and approve Subcontractors selected by the Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Contractor replace its superintendent at any time and the Contractor will replace said superintendent at the Owner's direction. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Contractor shall, immediately after award of the Contract and before submittal of the fast Application for Payment, prepare and submit the construction schedule for the Architect/Engineer's and Owner's information, review, and approval in accordance with the following provisions: (1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall provide for expeditious and practicable execution of the Work. (2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Contractor; and (ii) the latest date for approval by the Architect/Engineer. (3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor") of all the major construction activities of the Work in a logical and sequential order (the "project network ") which requires completion prior to commencement of the task next following (the "successor "). Each task shall be identified with: (i) actual work time, exclusive of slack time, for accomplishment; (ii) the latest start date; (iii) the latest finish date; (iv) the amount of float associated with each task; (v) the amount of labor, material, and equipment associated with each task; and (vi) the percentage of completion as of the date of the current schedule. (4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. EXHIBIT 4 (5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect/Engineer and the Owner an up -to -date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist Or a tirne scale drawing indicating actual progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner: The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect/Engineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the Architect/Engineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect /Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes and selections made during construction, and in addition shall maintain at the Project site approved EXHIBIT 4 Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered to. the Architect/Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, sumdard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect/Engineer is subject to the limitations of Paragraph 4.2. (e) The Contractor shall review, approve and submit to the Architect/l angi:necT Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay, in the Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. (f) The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been approved by the Architect/Engineer. Work requiring this submittals and review shall be in accordance with approved submittals and any identified exceptions noted by the Architect/Engineer. (g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and related field construction criteria, or will do so, and has checked and coordinated the information contained within submittals with the requirements of the Work and of the Contract Documents. The Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions, deletions or omissions from requirements of the Contract Documents by the Architect/Engineer's approval, of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Architect/Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at the time of submittal and the Architect/Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given written Approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's approval thereof. Further, notwithstanding any approval of a submittal by the Architect/Engineer, the Contractor shall be responsible for all associated Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not specifically identified by the Contractor to the Architect/Engineer at the time of the above - mentioned submittals, including additional consulting fees, if any, in any EXHIBIT 4 and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to additional revisions other than those requested by the Architect/Engineer,on previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not requested. 0) Informational submittals upon which the Architect /`ngineer is not expected to take responsive action may be so identified in the Contract Documents. (k) When professional certification ofperibimiance, criteria of materials, systems, or equipment is required by the Contract Documents, the Architect/Engineer shall be entitled,to rely upon the accuracy and completeness of such calculations and certifications. 3.13 USE OF THE PROJECT SITE The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project site with materials or equipment. 3.14 CUTTING AND PATCHING (a) The Contractor shall be responsible for cutting; fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. (c) A Hot Work Pennit must be obtained from the City of Denton's Facilities Management Department, 869 S. Woodrow lane, Denton., Texas (940 349 -7200) for any temporary operation involving open fiances or producing heat and/or sparks. This includes, but is not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect/Engineer access to the Work in preparation and progress wherever located during the course of construction. 3.17 TESTS AND INSPECTIONS EXHIBIT 4 (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental entity or agency, and the Contractor shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to be made so the Architect/Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received. (b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over the Work determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections are to be made so that the Architect/Engineer may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c). (c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of repeated procedures and compensation for the Architect/Engineer's services and expenses, if any. The Contractor shall bear the costs of any subsequent testing, inspection, or approval of the corrected Work. (d) Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer. (e) If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of testing or inspection. (f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 3.18 ROYALTIES AND PATENTS The Contractor shall pay all royalties and license.fees. CONTRACTOR SHALL COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT/ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT THE OWNER OR THE ARCHITECT/ENGINEER SPECIFIED A PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Contractor shall immediately notify the Owner and the Architect/Engineer of same. EXHIBIT 4 3.19 INDEMNIFICATION (a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT/ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, 'THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB - SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE ARCHITECT/ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT/ ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING. ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety and health of workers. The Contractor specifically agrees to comply with the above - mentioned laws and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect/Engineer under the above - mentioned laws and regulations are secondary to those of the Contractor. ARTICLE 4 CONTRACT ADMINISTRATION EXHIBIT 4 4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER) (a) The design professional is the person lawftilly licensed to practice architecture or engineering or a firm or ' other business entity lawfully practicing architecture /engineering identified as such in the formal Building Construction Services Agreement and is re�reffcd to throughout the Contract Documents as if singular in number. The term "Architect/Engineer" means the Architect/Engineer or the Architect/Engineer's authorized representative. The Owner may, at its option, designate a qualified Owner representative to serve as the Architect/Engincer on the Project instead of an outside firm or person. In. such event, the references in these General Conditions that refer to the Architect/Engineer shall apply to the Owner-designated Architect/Engineer representative and the Owner-designated Architect/Engineer representative shall be accorded that same status by the Contractor, (b) In the event the Architect/Engineer is an outside person or firm and the Architect/Engineer's employment is terminated, the Owner may, at its option, contract with a new outside Architect/Engineer to replace the former, or may designate a qualified Owner representative: to serve as the Architect/Engineer. The replacement Architect/Engincer, whether an Owner representative, an independent Architect/Engineer or any other qualified person or entity, shall be regarded as the Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled by the Owner, whose decision shall be 11nal and binding. (c) Owner reserves the right to appoint a representative empowered to act for the Owner during the Construction Phase and to supersede the Architect/L7.11ngineer's Construction Phase responsibility. Owner shall notify the Architect/Engineer and Contractor in writing at least 10 days in advance, if electing to appoint a representative empowered to act for the Owner during the Construction Phase. Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the Architect/Engineer, with the Owner notifying the Contractor of any such changes. The Architect/Engineer shall not be construed as a third party beneficiary to the Contract and can in no way object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have control over charge of, or be responsible for, construction, means, methods, techniques, sequences, or procedures, or for safety precautions or programs in connection with the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.2 ARCHITECT/ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION (a) The Architect/Engineer will administer the Contract as described in the Contract Documents and in accordance with the terms of the Architect/Engineer's agreement with the Owner, where applicable, subject to the direction and approval of the Owner. If requested by the Contractor, the provisions of the Owner/Architect/Engineer Agreement will be made available to the Contractor. (b) The Architect/Engineer shall provide, during performance of the Work, adequate and competent periodic on-site construction observation, periodically visiting the Project site to the extent necessary to personally familiarize themselves with the progress and quality of the Work, and to EXHIBIT 4 determine if the Work is proceeding in accordance with the Contract Documents. The Architect/Engineer shall not, however, be required to make continuous on -site inspections to check the Work. Field reports of each visit shall be prepared by the Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the. Work. The Architect/Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect/Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect /Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub - subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Architect/Engineer. Communications by and with the Architect /Engineer's consultants shall be through the Architect/Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made directly with the Owner and provide copies of such confirmation to the Architect/Engineer. (e) Based on the Architect/Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. (f) The Architect/Engineer and the Owner will each have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect/Engineer will have authority to require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is lhbricated, installed or completed. However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of the Architect/Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. (g) The Architect/Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect/Engineer's action will be taken with such reasonable promptness as to not delay the Work or the activities of the Owner, Contractor, or EXHIBIT 4 separate contractors. Review of such submittals is not conducted for the pwl)ose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated in writing by the Architect/Fengineer, of any construction means, methods, techniques, sequences, or procedures. The Architect/Engincer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3. (i) The Architect/Engineer will conduct inspections to determine the (late or dates of Substantial Completion and the date of final conapletion,'will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. (j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or more Project representatives to assist in carrying out the Architect/Engiaaeer's responsibilities at the site. The duties, rc ponsibilities, and limitations of authority of such .project representatives shall be as set forth in an exhibit to be incorporated into the Contract Documents. (k) The Architect/Engineer will interpret and (make recommendations to the owner concerning performance under and rcquirements of the Contract Documents upon written request of either the Owner or Contractor. °1 "lie Architect./Engincer's resl�oi e to such requests will be made with reasonable promptness and within any time limits agreed upon. Tlie Architect/Engincer shall secure the Owner's written approval before issuing instructions, interpretations, orjudgnaents to the Contractor which change the scope of the Work: or which modify or change the terms and conditions of any of the Contract Documents. (1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect/Engineer will endeavor to secure faithful performance by the Contractor. (m)The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents provided that the Architect/Engineer has prior written approval of the Owner. 4.3 CLAIMS AND DISPUTES (a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a "Claim" means a demand or assertion by one of the parties to the Contract seeking an adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the scope of the Contract Documents. The responsibility to substantiate the Claim and the burden of demonstrating EXHIBIT 4 compliance with this provision shall rest: with the party making the Clain,. Except where otherwise provider], in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional tinge, or other relief, including, but not limited to claims arising from. concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT/ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, shall be signed and sworn to by mi authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the Contract Documents shall be referred to the Architect/Engineer for recommendation to the Owner, which recommendation the Architect/Engineer will furnish in writing within a reasonable time, provided proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim to the Architect/Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the Claim. (c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated. with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3() of these General Conditions; and (5) the Owner and the Architect /Engincer determine ghat.. (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING EXHIBIT 4 REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT/ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT/ENGINEER DO NOT GUARANTEE. OR WARRANT ANY INFORMATION SHOWN.IN THE PROJECT SITE INFORMATION AND REPORTS. (f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect/Engineer a sufficient amount of time, without adversely affecting the construction schedule, to review the request, prepare and distribute such additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a Change Order for the required work if the Contractor believes that additional cost is involved for reasons including but not limited to: (1) a written interpretation from the Architect/Engineer; (2) a written order for a minor change in the Work issued by the Architect/Engineer; (3) failure of payment by the Owner; (4) termination of the Contract by the Owner; (5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or property because of an act or omission of the Owner, or of any of the Owner's officers, employees or agents, written, sworn-to notice of any claim for damages or injury shall be given as provided in Subparagraph 43(a). The notice shall provide sufficient detail to enable the Architect/Engineer and the Owner to investigate the matter. (h) Subcontractor Pass- Through Claims. In the event that any Subcontractor of the Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be subject to: (1) the requirements of Paragraph 4.3 of these General Conditions; and (2) the following additional three requirements listed below, all three of which additional requirements shall be conditions precedent to the entitlement of the Contractor to seek and assert such claim against the Owner: EXHIBIT 4 (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identified in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating . agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid.. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by the Subcontractor shall be included by Contractor in the claim submittal materials. (3) Any failure of the Contractor to comply with any of the foregoing requirements and conditions precedent with regard to any such claim shall constitute a waiver of any entitlement to submit or pursue such claim. (4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial Completion of the Work by or before the Scheduled Completion Date is of substantial importance to Owner. The following provisions, therefore, will apply: (1) If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Contractor to develop a recovery schedule as described in ,paragraph 3.10 or to accelerate its progress in such a manner as to achicve Substantial Completion on or before the Contract Time completion date or such other date as the Owner may reasonably direct and, upon :receipt, die Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Contractor is otherwise entitled to an extension of Contract Time said has properly initiated a Claim for a time extension in accordance with Subparagraph. 4.3(a) above, the Owner shall have the right, in the Owner's sole discretion, to deny all, . or any part, of the Claim for extension of Contract Time by givi sag written notice to the Contractor provided within fourteen (14) days alter receipt of the Contractor's Claim. If EXHIBIT 4 the Owner denies the Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date. (3) If the Contractor would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by the Owner if not for the need, and right to accelerate, the Contractor may initiate. a Claim for acceleration costs pursuant to Subparagraph 4.3 (a). Any resulting. Claim for acceleration costs properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay; additional crew, shift, or equipment costs if requested in advance by the Contractor and approved in writing by the Owner. A percentage markup for the .prorated cost of preanium on the existing performance and payanent bonds and require, insurance, not to exceed 5 %, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from: (1) claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled; (2) defective or nonconforming Work appearing after Substantial Completion; (3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or (4) the terms of general and special warranties required by the Contract Documents or allowed or implied by law. (k) THE CONTRACTOR SHALT, NOT BE EENTITLED ,m RECOVER ATTORNEY'S FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS, OCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING. (1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER'S O"OVERNMENTAID IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE LAW. ARTICLE 5 SUBCONTRACTORS EXHIBIT 4 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease for use in performance of or incorporation into the Work. The term "Subcontractor" is referred to throughout the Contract Docunrents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. (b) A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the 1'r Ject site or to supply materials or equipment to the Subcontractor or another Sub- subcontractor by purchase or lease for use in performance of or incorporation into the "!fork. The term "Sub- subcontractor" is referred to throughout t he Contract locurnents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK. WITH REGARDS TO MWBE, THE CITY OF DENTON ONLY REQUIRE A GOOD FAITH EFFORT, THERE IS NO PERCENTAGE REQUIREMENT. (a) Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers, NVV*IBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract, The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect/Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect/Engineer has made reasonable and timely objection. (c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect/Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect/Engineer makes reasonable objection to such change. EXHIBIT 4 5.3 SUBCONTRACTUAL RELATIONS (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extant of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner and the Architect/Engineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect/Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into�similar agreements with.. Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which. the Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions of such Documents available to their respective proposed Sub - subcontractors. (b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report") with each Application and Certificate far Payment, along with partial waivers of liens for all Work included in the application for payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. Pay applications will not be reviewed or certified by the Architect to the Owner without accompanying partial lien waivers after the first Certificate for payment. With each Application for Payment, the Contractor shall certify that there are no mechanics' or materialmen's Liens outstanding at the date of the Application for Pyament, and that all bills due with respect to the Work have been paid to date, and that there is no known basis for filing of any liens against the Surety or the Owner in connection with the "Work. Upon completion by the Contractor of the construction of the project., but prior to final payment to the Contractor, the Contractor shall deliver to the Owner conditional releases of all liens, which shall identify the remaining sums to be paid pending receipt of final payment. The conditional releases of liens, upon final payment by the Owner, shall rlease the Owner of all liens, and of all rights to claim any lien,, from all manufacturers, nraterial -nren, grad subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Ower is released from all such claims. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. Provided that the Owner has been notified by written correspondence (a lien notice) from any nanufhcturer, rrraterial -men, or subcontractor furnishing services or materials for the project that an outstanding debt is owed., the Owner shall ensure that the Contractor is notified of such notice within ten (14) days of receipt of such notice. The Contractor shall ensure that resolution has EXHIBIT 4 been achieved for each written notice filed with the Owner, and provide sufficient written documentation to the Owner that payment has been rendered; or a resolution has been achieved that is satisfactory to the Owner. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of -the General Conditions, should it appear from the Report, statements of payment received mother information furnished to the Owner that. (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCHITECT/ENGINEER'S ENFORCEMENT OF THIS SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent, deliver and assign to Owner, or any person or entity acting on the Ovaitr "s behalf, any or all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals and copies of the subcontract documents. In the event assignment is not requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same and to the extent that they relate to the performance of Work terminated by the notice of termination. ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE, CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS (a) The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Project site under Conditions of the Contract identical or substantially similar to these General Conditions, including those portions related to EXHIBIT 4 insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with the Contract Documents. (b) When separate contracts are awarded lair dit ercnt portions of the Project or other constnte'tion or operations on the Project site, the term `Contractor'" in the Contract Documents in each case shall mean the Contractor who executes each separate Building Construction Services Agreement with the Owner. (c) The Owner shall provide for coordination of "the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor believes it is entitled to an adjustment . of the Contract Sum under the circumstances, the Contractor shall submit a. Witten proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's Change Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. (d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own l"orccs, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under these General Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY (a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and storage of their materials and equipment and the performance of their activities and shall coordinate the Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in the other construction that would render it unsuitable for proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault or negligence of a separate contractor or through failure of a separate contractor to carry out the directions of the Owner or the Architect/Engineer, Should any interference occur between the Contractor and a separate contractor, the Architect�En&eer or the Owner may furnish the Contractor with written instructions designating priority of effort or change in methods, whereupon the Contractor shall immediately comply with such direction. In such event, the Contractor shall be entitled to an extension of the Contract'rime only for unavoidable delays EXHIBIT 4 verified by the Architect/Engineer; no increase in the Contract Sum, however, shall be due to the Contractor *. (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred. (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the Project site and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as the Architect/Engineer recommends to be just. ARTICLE 7 AMENDMENTS 7.1 CHANGE ORDERS (a) A Change Order is a written order to the Contractor; signed by the Owner and the Architect/Engineer, issued after execution of the Contract., authorizing a change in the Work, an adjustment in the Contract Sum, or an adjustment to the Contract 'rinie, consistent with other applicable provisions of this Contract. The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties, may order changes to the scope of Work under the Contract by additions, deletions, or other revisions; the Contract Sum and Contr act Time to be adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the Owner's City Attorney. (b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however, should the'Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect/Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute EXHIBIT 4 conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The Contractor forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative impact of all Change Orders and to any claim related to the effect of a change on other Work. (c) No extra work (except under emergency conditions) or changes shall be made nor shall any substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings and Specifications be made unless pursuant to a written Change Order signed by the Owner and the Architect/Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra work or any substitution, change, addition, omission or deviation from the requirements of the Drawings or Specifications unless the same shall have been authorized in writing by the Owner and the Architect/Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such provisions and the other provisions of this Article 7. See Subparagraph 103(a) of the General Conditions for Change Orders under emergency conditions. (d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following: (1) mutual acceptance of a guaranteed maximum price amount properly itemized and supported by sufficient substantiating data to permit evaluation; (2) unit prices stated in the Contract Documents or subsequently agreed upon; (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the force account method provided in Subparagraph 7.1(e) (e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15 %. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect/Engineer each day during the performance of force account work, with copies'to the Owner. FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE- CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: EXHIBIT 4 (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; (2) costs of materials, supplies and equipment (but not to include off -site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect/Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order. form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written order§ promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. 7.4 TIME REQUIRED TO PROCESS AMENDMENTS (a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in EXHIBIT 4 advance of the required work to alibw the Owner and the Architect/Engineer a minimum of thirty (30) calendar days after receipt by the Architect/Engineer to review the itemized breakdown and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other grounds for seeking extra compensation under the Contract Documents, without reservation or further recourse. (b) All Amendments require approval by either the City Council or, where authorized by the state law and City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a minimum of forty -five (45) calendar days after submission to the Owner in final form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with the work under a pending Amendment only if directed in writing by the Owner. ARTICLE 8 CONTRACT TIME 8.1 DEFINITIONS (a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. (b) The date of commencement of the Work is the date established in the notice to proceed from the Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of persons or entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. (c) The date of Substantial Completion is the date certified by the Architect/Engineer in accordance with Paragraph 9.7. (d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at 12:00 midnight, unless otherwise specifically defined by special provision. 8.2 PROGRESS AND COMPLETION (a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Building Construction Services Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing, prematurely commence operations on the Project site or elsewhere prior to the effective date of insurance to be furnished by the Contractor as required by Article 11. The date of EXHIBIT 4 commencement of the Work shall not' be changed by the effective date of insurance required by Article 11. (c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the Building Construction Services Agreement, or in any proper extension of the Contract Time granted by the Owner, then the Contractor agrees, as a part of the consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated damages (hereinafter called the "Stipulated Amount ") as stipulated in the Bid Proposal form and the Building Construction Services Agreement for each calendar day that the Contractor has not Substantially Completed the Work after the expiration of the Contract Time provided. The Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient to recover the Stipulated Amount, then the Contractor or the Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in excess of the funds remaining unpaid in the Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially Completed within the calendar days allotted, which shall include the original Contract Time and any proper extension of the Contract Time granted in writing by the Owner. Should the Contractor dispute the Owner's determination of liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns, institute any legal action against the Owner to enforce rights under the Contract Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking frill recovery for any and all actual damages suffered by the Owner and attributable to the Contractor, as an alternative to all liquidated damages due. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect/Engineer and Owner may determine. (b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3. (c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO EXHIBIT 4 COMPLETE THE WORK; INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY. (d) The Owner shall have the right to occupy, without prejudice to the right of either party, any completed or largely completed portions of the structure or Work, notwithstanding the fact that the Contract Time for completing all or a portion of the Work uruay not have expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken or used. (e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being suspended by a court order. (f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect/Engineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions considered unsafe, for workmen, or the general public. If it should become necessary to stop the Work for an indefuiuite period, the Contractor shall store all materials in such a, manner that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent dranage or deterioration of the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor shall not suspend the Work in whole or in part without written authority from the Architect/Engitieer, or the Owner, and shall resume the Work promptly when notified by the Architect/Engineer or the Owner to resume -operations. (g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect/Engineer, Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM The Contract Sum is stated in the Building Construction Services Agreement and, including authorized adjustments, is the total amount of compensation payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES EXHIBIT 4 Before the first Application for Payment, the Contractor shall submit to the Architect/Engineer a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer may require. This schedule, when approved by the Architect/ringineer and (he Owner, shall be used as a basis for the Contractor's Application. l'or Payment. The schedule of values shall follow the trade division of the Specifications. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment), as approved by the Owner. 9.3 APPLICATIONS FOR PAYMENT (a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect/Engineer an itemized Application for Payment for Work completed in accordance with the schedule of values. The Application shall be notarized, if required, and supported by data substantiating the Contractor's right to payment as the Owner or Architect/Engineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off -site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off -site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. EXHIBIT 4 (e) All materials or equipi-nent delivered to the Project site earlier than thirty (30) days prior to an af)proved schedule for delivery to the .Protect site shall be classified as an "early delivery." All early delivery materials, or, equipment must have the express written permission of the Owner to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off-site until required' at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved for payment as stored materials prior to thirty (30) days bef ore the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in writing by the Owner. (f) if the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect/Engineer will, within teni, (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the Architect/Engineer's reasons for withholding certification, in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certificate for Payment will constitute a representation by the Architect/Engineer to the Owner, based on the Architect/Engineer's observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated d and that, to the best of the Architect/Engineer's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to Final Completion and to specife qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate for Payment is not a representation that the Architect/Engineer has: (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; EXHIBIT 4 (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amot i , Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect/Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 93(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) The City is required to withhold retainage for public works contracts in which the total contract price estimate at the time of execution is more than $400,000; however, this requirement is typically applied by the City for all public works contracts in excess of $50,000. The City may require varying percentage withholding amounts; however, the City typically requires five percent. For retainage percentages in excess of five percent, the City must deposit the retainage into an interest - bearing account and pay the interest earned to the contractor on completion of the contract. The retainage will be withheld by the Owner from each progress payment until final completion of the Work by the Contractor, approval of final completion by the Architect/Engineer, and final acceptance of the Work by the Owner. Unless otherwise required by state law, the retainage percentage as specified above is based upon the original Contract Sum, and will not be affected in the event the original Contract Sum is subsequently increased or decreased by Change Order. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect/Engineer's or Owner's opinion the representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect/Engineer or the Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and Arebitect M r gineer or the Owner cannot, agree on a revised arnoun( the Architect/Engincer will promptly issue a Certificate for Payment for the amount for which the Architect/Engineer is able tb make the required representations to the Owner. The Architect/Engineer or the Owner may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary, in the Architect/Engineer's or Owner's opinion, to protect the Owner from loss because of: (1) defective or nonconforming Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; EXHIBIT 4 (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; (7) persistent failure to carry out the Work in accordance with the Contract Documents; or (8) mathematical or other errors that are discovered in the Application for Payment. (b) When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payment or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due tol the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect/Erigincer has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shell so notify the Architect /l "'rigineer. The Owner shall not be liable lbr interest on any late or delayed progress payment or final payment caused by any claim or dispute, any discrepancy in gUantities, any failure to provide supporting documentation or other information required with the Application for Payment or as a precondition to payment under the Contract Documents, or due to any payment the Owner or the rchitect/ingineer has a right to withhold or not certify under the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including, without limitation, the final Certificate for Payment) for any default under the Contract Documents, including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Contractor default remains uncured. (b) The'Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from. payments to the Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in. similar manner. (c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken EXHIBIT 4 thereon by the Architect/Engineer and the Owner on account of portions of the Work done by such Subcontractor. (d) Neither the Owner nor the. Architect/Engineer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3. (e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d). (f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is'the date certified by the Architect/Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work., or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the ArchitectlEngineer a comprehensive list of remaining items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list "). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect/Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substmitially Complete. If the Architect/Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the Contract Documents and which renders the Work inspected not Substantially Complete the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct the item upon notification by the Architect/Engineer. The Contractor shall then submit a request for another inspection by the Architect/Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect /Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect/Engineer, the Owner shall make payment, EXHIBIT 4 reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use tiny completed or partially completed portion of "the Work at tiny stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided stich occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction, over the Work. Such partial . occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 93(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. (c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.9 FINAL COMPLETION AND FINAL PAYMENT (a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect/Engineer, accompanied by the Owner's representative, will promptly make final inspection and, when the Architect/Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the ArchitectlEngineer will promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge, information and belief, and on the basis of the Architect/Engineer's observations and inspection, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect/Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final payment within thirty (30) days after Owner's receipt and approval of the'final Certificate for Payment. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect/Engineer: EXHIBIT 4 (1) an affidavit that payrolls, bills for materials and egiiipinent, and other indebtedness connected with the Work for which the Owner or the Owner" s property might be responsible: or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in. force after final payment is currently in effect and will not be cancelled or allowed to expire until at beast thirty (3 l) days prior written notice has been given to the Owner;. (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) a consent of surety to final payment; and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. (c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit. under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmedin full for all labor and materials provided to him for the Work under this Contract. In the event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit the amount owed and the name of each subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. (d) If, after Substantial Completion of the Work,, final completion of the Work is materially delayed through no fault ofthe Contractor or by issuance of Change Orders affecting final completion and the Architect /Engineer confirms the delay, the Owner shall, upon application by the Contractor and certification by the Architect/Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect/Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. EXHIBIT 4 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. (b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. (e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre- approve the use of any explosives on the Project; the Contractor shall not assume in its bid that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with evidence of insurance sufficient to cover possible damage or injury, EXHIBIT 4 which insurance shall either include the Owner and the Architect/Engineer as additional insureds or be sufficiently broad in coverage, as to. fully protect the Owner and the Architect/Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places 'shall be marked clearly "DANGEROUS-EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton Fire Department regulations. `l"lae Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity of "the Project Site of tile Contractor's intention to use explosives, and such notice shall be given sufficiently in ,advance to enable the telecommunications and public utility companies and private property owners to take such steps as they may deem necessary to protect their property from ird] uay. The notice shall not relieve the Contractor of any responsibility for damage resulting from any blasting operations. (1) 131e Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 1,0.2(x)(2) and 10,2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except danrage or loss attributable to acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by eitber of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by property insurance or other insurance required by the Contract Docwnents, the Owner and the Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for such damage or loss. (g) The Contractor shall designate a responsible member of tlae Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor I'S superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer. (h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety. 10.3 EMERGENCIES In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Contractor shall place materials stored about the Work and shal l. conduct the Work at all times in a manner that causes no greater obstruction to the public than is considered ;necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special perrrrission of the Owner. The materials excavated and the construction materials or plant used in the performance of the Work shall be placed in a manner that does not endanger the Work or EXHIBIT 4 prevent free access to all fire hydrants, water mains and appurtenances; water valve's, gas valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity. . (b) The Owner reserves the right to remedy any neglect on the. part of the Contractor in regard to public convenience and safety which may come to the Owner's attention, after twenty -four (24) hours notice in writing to the Contractor. In case of an emergency, the Owner shall have the right to immediately remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case of major thoroughfares or street upon which transit lines operate, be forty -eight (48) hours in advance. The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor shall, when directed by the Architect/Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor's responsibility for accidents shall include the roadway approaches as well as the crossing structures. 10.5 BARRICADES, LIGHTS AND WATCHMEN If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect/Engineer may order the damaged portion immediately removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted by the Owner. 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor. EXHIBIT 4 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10:8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical connections with the Owner or with Denton Municipal Electric in the event that separately metered electrical connections are required for the Project. The Contractor shall pay for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly, authorized to do so by the Denton Water Utilities Department in accordance with the Denton City Code. 10.10 ENVIRONMENTAL COMPLIANCE (a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable federal, state or local laws, roles, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C.A. §§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42 EXHIBIT 4 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. (b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter to the Architect/Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors, the Contractor shall be responsible for remediating the condition at the sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner and the Architect/Engineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. (d) Spill Prevention Plan. At least seventy -two (72) hours prior to commencing performance of any of the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and regulations. The SPRP shall be specially designed for the Contractor's planned work methods and procedures. The SPRP shall be designed to complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty -four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of EXHIBIT 4 such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. (f) The Contractor shall deposit surplus or waste excavation or other materials removed as part of the Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to removal of any excavation or other material from the Project site. A copy of all transport manifests for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request to the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. (g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to the Clean Water Act, 33 U.S.C.A. §§ 1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb'the applicable amount of 'total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos - related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable. EXHIBIT 4 (i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days advance written notice from the Owner to comply with the provisions of this Paragraph 10. 10, the terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other environmental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: (1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed plan to achieve compliance within a reasonably prompt period of time is prepared by the Contractor and approved by the Owner; (2) if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor for the cost of the remediation or correction; or (3) terminate the Contract for cause as provided in Article 13. ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.2 PROPERTY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 113(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -of- Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: EXHIBIT 4 (1) Performance Bond. A good and sufficient bond in an arnount equal to ] 00% of the total Contract Sum, guaranteeing the loll and faithful execution of the Work and perfort nance of the Contract in accordance with Plans, Specifications and all other C``ontracVDocunncnents, including any Amendments thereof, for the protection of the Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A. good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner - accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal. to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Ownner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. (d) The person or persons, partnership, company, firm, Limited Liability Company, association, corporation, or other business entity to wlKnm the Contract is awarded shall, within ten (10) days after such award, sign the required. Contract with the Owner and provide the necessary surety bonds and evidence of insurance as required under the Contract Documents. No Contract shall be binding on'the Owner until it has been approved as to form by the City Attorney, executed for the Owner by the City Manager, the performance and payment bonds and evidence of insurance have been furnished as required by the Contract Documents, and the fully executed contract has been delivered to the Contractor. (e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or, as soon thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid proposal and the Owner may rescind the Contract award and collect or retain EXHIBIT 4 the proceeds of the bid security: By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing of a bid proposal with the accompanying, bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re- advertise for bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re- advertisement shall be the bid referred to in this Paragraph. ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK 12.1 UNCOVERING OF WORK (a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to requirements specifically expressed in the Contract Documents, the Work must, if required in writing by the Architect/Engineer, be uncovered for the Architect/Engineer's observation and be replaced at the Contractor's expense without change in the Contract Time. (b) If a portion of the Work has been covered which the Architect/Engineer has not specifically requested to observe prior to it being covered, the Architect/Engineer may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK (a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect/Engineer's services and expenses made necessary thereby. (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Architect/Engineer or the Owner to do so unless the Owner has previously given the Contractor a written acceptance or waiver of the defect or nonconformity. The Contractor's obligation to correct defective or nonconforming Work remains in effect for: (1) one year after the date of Substantial Completion of the Work or designated portion of the Work; (2) one year after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.$(a); or (3) the stipulated duration of any applicable special warranty required by the Contract Documents. EXHIBIT 4 (c) The one -year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions of the Work performed,- repaired, or corrected after Substantial Completion by the period of time between Substantial Completion and the actual completion of the Work. (d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work and termination of this Contract. The Owner shall give notice to the Contractor promptly after discovery of a defective or nonconforming condition in the Work. The one -year period stated in Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct latent defects or nonconformities in the Work, which defects or nonconformities could not have been discovered through reasonable diligence by the Owner or the Architect/Engineer at the time the Work was performed or at the time of inspection for certification of Substantial Completion or Final Completion. The one year period also does not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the one year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. (f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the Architect/Engineer, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work within a reasonable time fixed by written notice from the Architect/Engineer, the Owner may remove or replace the defective or nonconforming Work and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and equipment at auction or at private sale and shall account for the proceeds after deducting costs and damages that should have been borne by the Contractor, including compensation for the Architect/Engineer's services and expenses made necessary as a result of the sale. If the proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the deficiency, the Contractor shall pay the difference to the Owner. (g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or separate contractors, whether the construction is completed or partially completed, that is caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to'other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's' obligations other than specifically to correct the Work. EXHIBIT 4 (i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article 12 to the same extent as Work originally performed or installed. - . 12.3 ACCEPTANCE OF NONCONFORMING WORK The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with the requirements of the Contract Documents instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether or not final payment has been made. ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION 13.1 FINAL COMPLETION OF CONTRACT The Contract will be considered completed, except as provided in any warranty or maintenance stipulations, bond, or by law; when all the Work has been finally completed, the final inspection is made by the Architect/Engineer, and final acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to'the expiration of the specified warranty period provided for in the Contract Documents, the Architect/Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect/Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect/Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (2) A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Contractor has abandoned the Work. (5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work. EXHIBIT 4 (6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract Documents or to comply with any written orders given by the Architect/Engineer or the Owner as provided for in the Contract Documents. (7) Failure or refusal of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature, the correction of which has been directed in writing by the Architect/Engineer. (8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on the Owner in connection with the construction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within twenty (20) days after the written notice of termination for cause has been served upon the Contractor and the surety or its authorized agents, assume the obligations of the Contractor for the Work or that portion of the Work which the Owner has ordered the Contractor to discontinue and may: (1) perform the Work with forces employed by the surety; (2) with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or (3) with the written consent of the Owner, tender and pay to the Owner in settlement the amount of money necessary to finish the balance of uncompleted Work under the Contract, correct existing defective or nonconforming Work, and compensate the Owner for any other loss sustained as a result of Contractor's default. In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Contractor's place in all respects, and the amount of funds remaining unpaid under the Contract shall be paid by the Owner for all Work performed by the surety or the replacement contractor in accordance with the terms of the Contract Documents, subject to any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the termination shall become due and payable to the surety as the Work progresses, subject to all of the terms, covenants, and conditions of the Contract Documents. If the surety does not, within the time specified in Subparagraph 13.3(b), exercise its obligation to assume the obligations of the Contract, or that portion of the Contract which the Owner has ordered the EXHIBIT 4 Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Contractor agrees that the Owner shall have the right to take possession of or use any or all of the materials, plant, tools, equipment, supplies, and property of every kind provided by the Contractor for the purpose of the Work, and to procure other tool's, equipment, labor, and materials for the completion of the Work, and to charge to the account of the Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred by the Owner to complete the Work shall be deducted by the Owner out of the balance of the Contract Sum remaining, unpaid to or unearned by the Contractor. The Contractor and the surety shall be liable to the Owner for any costs incurred in excess of the balance of the Contract Sum for the completion and correction of the Work, and for any other costs, damages, expenses (including but not limited to additional fees of the Architect/Engineer and attorney's fees), and liquidated or actual damages incurred as a result of the termination. (d) The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner. (e) The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination for convenience, the Owner shall deliver at least ten Q 0) days advance written notice of termination for convenience to 'the Contractor. Upon the Conixactor's receipt of such written notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Contractor shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the Contractor for lost or anticipated profits. 13.4 TEMPORARY SUSPENSION OF THE WORK (a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon written notice to the Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; EXHIBIT 4 (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or.causes an immediate threat to public health; safety, or security; or (4) other unforeseen conditions or circumstances. (b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension. for any of the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Document's in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly made by the Contractor under Subparagraph 4.3 of these faeneral. Conditions: (1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the temporary suspension as determined by the Architect/Engineer and the Owner; (2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable costs of properly protecting any Work that is finished or partially finished during the period of the temporary suspension (no profit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the .l`tx�ect site and then return it to the Project site when the Work is ordered to be resumed; an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these :moves; provided, however, that no adjustment shall be due if the equipment is imved to ,another Project site of the Owner. ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. EXHIBIT 4 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain legally responsible for all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 14.3 WRITTEN NOTICE Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial'interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, EXHIBIT 4 association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees. 14.9 NONDISCRIMINATION As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. The Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. § §12101 - 12213, as amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work, performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported'in accordance with law. ' (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State. or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer; agreement to confer, or conferring of a benefit to a City of Denton employee or official. EXHIBIT 4 ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner "s election, all of the Contractor's records and billings relating to the performance of the Work under ¢he Contract Documents. The Contractor agrees to retain its Project records for a mini mum of five ( ) years following completion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise between the PO. ItYP document sypj2lier terms drawin s s ceiiie�ttions construction docu lnent or contract, the terms and conditions set forth in the Ci of Benton General Onditions and the rye otiated contract shall rcvail. EXHIBIT 4 Exhibit E City of Denton Special. Terms and Conditions EXHIBIT 4 ADDITIONAL TERMS AND CONDITIONS Contract Term It is the intention of the City of Denton to award a contract for construction of the project as described in the drawings and specifications. Materials and services undertaken .pursuant to this RFP will, be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The services shall be accomplished per the Scope of Work as identified in Section III, the Procurement Process and Procedures as outlined in Section II, and shall conform to the requirements contained in the Technical Specification in Exhibit 2, and Technical Drawings in Exhibit 3. The Contract shall commence upon the issuance of a Notice to Proceed by the City of Denton and shall automatically expire upon completion of the work and acceptance by the City of Denton. Pricing Only firm, lump sum pricing with no escalation will be accepted for this project. Price Adiustments Price adjustments will not be allowed for this project unless a change in scope is approved that increases or decreases the amount of work required. Requests or proposals for changes in scope must be submitted in writing with documentation that provides justification for the change and supporting evidence that describes the basis for the cost change. Upon receipt of such request, the City of Denton reserves the right to either: accept the proposed change as competitive with the general market price at the time and issue appropriate authorizations or reject the increases within 30 calendar days after receipt of a properly submitted request. No work shall be undertaken on a proposed change until authorized by the City of Denton in the form of a Purchase Order change and/or other documentation appropriate to amending the contract. The request can be sent by e-mail to: purchasing@cityofdenton.com Or mail to: City of Denton Attn: Purchasing Manager RFP # 4811 901B Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349 -7100 The City of Denton reserves the right to accept, reject, or negotiate any proposed price changes. uantities The quantities indicated on the drawings and in the Technical Specification are believed to be accurate but shall be considered only as estimates. The project requires complete and functional construction of the substation perimeter fence in accordance with the dimensions presented on the project documents. Differences between the quantities of material required and the estimated quantities will not be considered as basis for a change in the price for the project. In submitting a proposal, the proposer is stating that he has reviewed the project drawings and specifications and understands their intent and has checked the quantities and dimension and is asserting that the proposal is intended to account for all conditions and quantities to complete the project as described in the plans and specification. Substitutions Substitutions are not permitted without the written approval of the City of Denton Purchasing Department. For substitutions prior to the proposal deadline, this will be accomplished with a submittal EXHIBIT 4 to the Architect/Engineer, and approval by the .City representative, and issuance of a written addendum. For substitutions after contract award, this will be accomplished with a submittal request to the Architect/Engineer, and approval by the City representative, and issuance of a written• contract change order. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to the Project Manager with the RFP number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be rejected and must be removed from the site at the supplier's expense. Products that have been installed shall be replaced at the supplier's expense. Patent Rights The contractor agrees to indemnify and hold harmless the City from any claim involving patent right infringement or copyrights on goods supplied. Asbestos Free Materials The contractor shall provide asbestos -free materials as represented by the Manufacturer's "Materials Safety Data Sheets" Rights to hats Document S3 and Coin uter^ Software 'government Entit nersl�i Any software, research, reports studies, data, photographs, negatives or other documents, drawings or materials prepared by contractor in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be delivered to the City by the contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of contractor's obligations under this contract without the prior written consent of the City; provided, however, that contractor shall be allowed to use non - confidential materials for writing samples in pursuit of the work. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. Adding New Products or Services to the Contract after Award Following the Contract award, ADDITIONAL services of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to successful Contractor to provide a proposal on the additional services and shall submit proposal to the City as instructed. All submitted prices are subject to negotiation in accordance with Texas Government Code 2254. The City may accept or reject the proposal, and may issue a separate RFQ for the services requested, after rejecting some, or all, of the proposal. The services covered under this provision shall conform to the statement of work, specifications, and requirements as outlined in the request. Contract changes shall be made in accordance with Local Government Code 252.048. Samples Respondents must make samples available in accordance with the specification and upon request by the City of Denton prior to award with no costs to the City. EXHIBIT 4 Venue This agreement shall be governed by the law of the State of Texas and venue for its construction and enforcement shall lie in the courts of Denton County, Texas. Silence of Specifications The apparent silence of these specifications as to any detail or the apparent omission from it of a detailed description concerning any point, shall be regarded as a meaning that the only best commercial practices are to prevail. All integaretations of these specifications shall be made on the basis of this statement: Prevailinz Wage Rates In accordance with Texas Government Code 2258, the awarded contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at lrtt a;i�w w,dol y /whd� oar ra is j rra.lrt ra and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). Notwithstanding any other provision of this Contract, the awarded contractor hereby represents and warrants that the contractor shall pay to each of its employees a wage not less than what is currently known as the "Federal Minimum Wage" and any increase or amendments thereto. Furthermore, contractor shall produce proof of compliance with this provision by contractor to the City. The City shall withhold payments due to contractor until contractor has complied with this provision. Prior, to any payment being made for work satisfactorily completed and accepted, contractor shall submit wage rate affidavits with its billing documents affirming that all employees have been paid not less than the current "Federal Minimum Wage ". Sipecial Permitting Reg uirements The awarded contractor shall work with identified City staff to obtain the necessary permits for construction of the project. Contracts and Bonds Successful awarded contractor will be required to sign, original contract and submit a performance and payment bonds for 100 percent of the total proposal submitted before work is to commence. The contractor shall assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as amended. The City shall normally return the proposal bonds within ten (10) working days after the proposal due date, except for the three top ranked fums. The three top ranked firms will be retained by the City until the required contract and bonds have been executed, after which they shall be returned. SPECIAL CONDITIONS FOR GRANT FUNDED PURCHASES DAVIS BACON COMPLIANCE REOUMEMENTS The Contractor shall comply with the requirements of the Davis -Bacon Wage Act and the Wage Rate Requirements under Section 1606 of the Recovery and Reinvestment Act (the Act) and shall indemnify the City from liability for any failure to pay wages in compliance with the Act. The contractor shall ensure that all laborers and mechanics employed in the performance of the ' proj ect for which the EXHIBIT 4 assistance is provided, including those employed by subcontractors, are paid wages at rates not less than those prevailing on similar work in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter.31 of title 40, United States Code (commonly referred to as the `Davis - Bacon Act'). The bidder who is awarded the Contract shall pay the wage rate in effect as of the date the Contract is awarded. The Contractor shall cooperate with the City by providing information in the form and frequency requested by the City concerning the type of work performed, the number of hours worked, and the hourly rates paid for the various types of work performed by all workers on the Project. The Contractor shall allow City staff to conduct on -site wage interviews and shall post information concerning the Act as requested by the City. All contractors and subcontractors must comply with Davis -Bacon Wage Rates and the Wage Rate Requirements of Section 1606 of the Recovery and Reinvestment Act. °t +einves en't Act Grant are as follows: TM,V AWA.c ".D TERM IS APPLICABLE TO ARRA, AWARDS WHEN WAGE RATE BL""OUIREMENTS UNDER SECTION 1606 OF TIIE RE, ECO "FRY,4CT TERM ISAPPLIC:'ARLE. THISAWARD TERMISALSO APPLICABLE TO SUBGRANTSAND CONTRACTS. Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award from DOE and is financially accountable for the use of any DOE funds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition.— "Site of the work" — (1) Means- - (i) The primary site of the work. The physical place or places where the construction called for in the award will remain when work on it is completed; and (ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is— (A) Located in the United States; and (B) Established specifically for the performance of the award or project, (2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided - (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; EXHIBIT 4 (3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a Contractor or subcontractor whose locations and continuance in operation are determined. wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such permanent, previously established facilities are not a part of the "site of the work" even if the operations for a period of time may be dedicated exclusively or nearly so, to the performance of a award. (b) (1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)); the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was performed at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work. (2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section l (b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. (4) The wage determination (including any additional classifications and wage rates conformed under paragraph (c) of this article) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the .award shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefore only when all EXHIBIT 4 the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination. (ii) The classification is utilized in the area by the construction industry. (iii)The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 20210 The Administrator or an authorized representative will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the Contracting Officer do riot agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (4) The wage rate (including fringe benefits, . where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate.account assets for the meeting of obligations under the plan or program. EXHIBIT 4 Rates of Wages The minimum wages to be paid laborers and mechanics under this award involved in performance of work at the project site, as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employedon projects of a character similar to the contract work in the pertinent locality, are included as an attachment to this award. These wage rates are minimum rates and are not intended to represent the actual wage rates that the Contractor may have to pay. Payrolls and Basic Records (a) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and last 4 digits of the social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b) (2) (B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found, under paragraph (d) of the article entitled Davis -Bacon Act, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (b) (1) The Contractor shall submit weekly for each week in which any award work, is performed a copy of all payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph (a) of this article. This information may be submitted in any form desired. Optional Form WI-1-347 (Federal Stock Number 029- 005- 00014 -1) is available for this purpose and may be purchased from the -- Superintendent of Documents U.S. Government Printing Office Washington, DC 20402 The Prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. (2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his' or her agent who pays 'or supervises the payment of the persons employed under the award and shall certify — (i) That the payroll for the payroll period contains the information required to be maintained under paragraph (a) of this article and that such information is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the award during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the EXHIBIT 4 Regulations, 29 CFR Part 3; and (iii)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the award. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by subparagraph (b)(2) of this article. (4) The falsification of any of the certifications in this article may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code. (c) The Contractor or subcontractor shall make the records required under paragraph (a) of this article available for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit required records or to make them available, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Withholding of Funds The Contracting Officer shall, upon his or her own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this award or any other Federal award with the same Prime Contractor, or any other federally assisted award subject to Davis -Bacon prevailing wage requirements, which is held by the same Prime Contractor, so much of the accrued payments or advance's as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the award. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the award, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Apprentices and Trainees (a) Apprentices. (1) An apprentice will be permitted to work at less than the predetermined rate for the work they performed when they are employed - (i) Pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship and Training, Employer, and Labor Services (OATELS) or with a State Apprenticeship Agency recognized by the OATELS; or (ii) In the first 90 days of probationary employment as an apprentice in such an apprenticeship program, even though not individually registered in the program, if EXHIBIT 4 certified by the OATELS or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. (3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(1) of this article, shall be paid not -less than the ,applicable wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted -under the registered program shall be paid riot less than the applicable wage rate on the wage detennination,for the work actually performed. (4) Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor',, or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. (5) Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. if the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe bcnefits listed on the wage determination for the applicable classification. If the Administrator determines that a different, practice in prevails for the applicable apprentice classification, fringes ges shall be paid in accordance with that determination. (6) In the event OATELS, or a State Apprenticeship Agency recognized by OATELS, Withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (b) Trainees. (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer, and Labor Services (OATELS). The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by OATELS. ri 11, an f (2) Every trainee must be paid at not less than the rate specified i t e approved program or the trainee's level of progress, expressed as a percentage of the journeyman, hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program (toes riot, mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed in the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate in the EXHIBIT 4 wage determination which provides for less than full fringe benefits for apprentices. Any emlaloyee listed on the payroll at a trai:nce rate that is not registered and participating in a training playa approved by t1w OATELS shall be paid not less than the applicable wage rate in the wage deterrahration for the classification of work actually performed. In addition, any trainee performing work on. the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate in the wage determination for the work actually performed. (3) In the event OATELS withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (4) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this article shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR Part 30. Compliance with Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by reference in this award. Subcontracts (Labor Standards) (a) Definition. "Construction, alteration or repair," as used in this article means all types of work done by laborers and mechanics employed by the construction Contractor or construction subcontractor on a particular building or work at the site thereof, including without limitation (1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off -site; (2) Painting and decorating; (3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work; (4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis Bacon Act of this, award, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the "site of work" definition; and (5) Transportation ' of portions of the building or work between a secondary site where a significant portion of the building or work is constructed, which is part of the "site of the work" definition in paragraph (a) (1) (ii) of the Davis -Bacon Act article, and the physical place or places where the building or work will remain (paragraph (a) (1) (i) of the Davis Bacon Act article, in the "site of the work" definition). (b) The Contractor or subcontractor shall insert in any subcontracts for construction,. alterations and repairs within the United States the articles entitled- EXHIBIT 4 (1) Davis -Bacon Act; (2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is included in this award); (3) Apprentices and Trainees; (4) Payrolls and Basic Records; (5) Compliance with Copeland Act Requirements; (d) Withholding of Funds; (7) Subcontracts (Labor Standards); (8) Contract Termination — Debarment; (9) Disputes Concerning Labor Standards; (10) Compliance with Davis -Bacon and Related Act Regulations; and (11) Certification of Eligibility. (c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor performing construction within the United States with all the award articles cited in paragraph (b). (d) (1) Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting Officer a completed Standard Form (SF) 1413, Statement and Acknowledgment, for each subcontract for construction within the United States, including the subcontractor's signed and dated acknowledgment that the articles set forth in paragraph (b) of this article have been included in the subcontract. Within 14 days after the award of any subsequently awarded subcontract the Contractor shall deliver to the Contracting Officer an updated completed SF 1413 for such additional subcontract. (e) The Contractor shall insert the substance of this article, including this paragraph (e) in all subcontracts for construction within the United States. Contract Termination -- Debarment A breach of the award articles entitled Davis -Bacon Act, Contract Work Hours and Safety Standards Act -- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards),. Compliance with Davis -Bacon and Related Act Regulations, or Certification of Eligibility may be grounds for termination of the whole award or in part for the Recovery Act covered work only, and for debarment as a Contractor and subcontractor as provided in 29 CFR 5.12. Compliance with Davis -Bacon and Related Act Regulations EXHIBIT 4 All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are hereby incorporated by reference in this award. Disputes Concerning Labor Standards The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes and Appeals as defined in 10 CFR 600.2.2.. Disputes within the meaning of this article include disputes between the Contractor (arid any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification of Eligibility (a) By entering into this award, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government awards by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (b) No part of this award shall be subcontracted to any person or firm ineligible for award of a Government award by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001 Approval of Wage Rates All straight time wage rates, and overtime rates based thereon, for laborers and mechanics engaged in work under this award must be submitted for approval in writing by the head of the contracting activity or a representative expressly designated for this purpose., if the straight time wages exceed the rates for corresponding classifications contained in the applicable Davisw- Bacon. Act minimum wage determination included in the award. Any amount paid by the Contractor to any laborer or mechanic in excess of the agency approved wage rate shall be at the expense of the Contractor and shall not be reimbursed by the Government. If the Government reflases to authorize the use of the overtime, the Contractor is not released from the obligation to pay employees at the required overtime rates for any overtime actually worked. BUY AMERICAN ACT COMPLIANCE REQUIREMENTS The Contractor acknowledges to and for the benefit of the City of Denton that it understands the goods and services under this Agreement are being funded with monies made available by the American Reinvestment and Recovery Act of 2009 (Recovery Act) (or are being grade availaible for a project being funded with monies made available by the Recovery Act) and section 1605 of such law contains provisions commonly known as "Buy American." The Buy American requirement prohibits the use of Recovery Act funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States (`Buy American requirement ") including iron, steel, and manufactured goods provided by the Contractor pursuant to this Agreement.° '1 -li.c Contractor hereby 'represents and warrants to and for the benefit of the Department of Energy (DOE) grantee that () the Contractor has reviewed and understands the Buy American requirement, (b) all of the iron, steel, and manufactured goods used in the project will be and/or have been produced in the United States in a manner that EXHIBIT 4 complies with the Buy American requirement, unless an exception to the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support an exception to the Buy American requirement, as may be requested by the DOE grantee or DOE. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the DOE grantee to recover as damages against the Contractor any loss, expense or cost (including without limitation attorney's fees) incurred by the DOE grantee resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part from DOE). Neither this paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the DOE grantee. I M. *I O Reinvestment Ac:t Gra-n-t are as r a. Definitions. As used in this award term and condition— (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been - (i) Processed into a specific form and shape; or (ii) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. (2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and nninor outlying islands of the United States; State and local governments; and multi - State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. (3) Steel means an alloy that includes at least 50 � percent iron, between .02 and 2 percent carbons, and may include other elements. b. Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111 - -5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition. EXHIBIT 4 (2) This requirement does not apply to the material listed by the Federal Government as follows: None [Award official to list applicable excepted materials or indicate "none "] (3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that- - (i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of inapplicability of Section 1605 of the Recovery Act. (1) Any recipient request to use foreign iron, steel; and/or manufactured goods in accordance . with paragraph (b) (3) of this section shall include adequate information for Federal Government valuation of the request, including— (A) A description of the foreign and domestic iron, steel, and/or manufactured goods; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (l) Location of the project; (G) Name and address of the proposed supplier; and (14) A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods cited in accordance with paragraph (b) (3) of this section. (i) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (ii) The cost of iron, steel, and/or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iii)Any recipient request for a determination submitted after Recovery .pct funds have been obligated for a project for construction, alteration„ maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and could not have requested the determination before the funds were obligated. if the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is non- availability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and/or other actions taken to cover costs associated EXHIBIT 4 with acquiring or using the foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel; or manufactured goods, the award official shall adjust the award amount or redistribute budgeted fiends by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Government deten -nines that an exception to section 1605 of the Recovery Act applies, use of foreign iron,, steel,, and/or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act. d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: List Foreign and Domestic Items Cost Comparison name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. EXHIBIT 4 Exhibit F Payment and Performance Bonds EXHIBIT 4 I Toil011_0FM, �Z?f.�e�yc:> COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS: That CBS Mechanical, Inc. whose address is 5001 West University Drive, Denton, Texas 76207 hereinafter called Principal, and the Hartford Fire Insurance Comnanv, a corporation organized and existing under the laws of the State of Connecticut, and fully authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called Owner, in the penal sum of ONE- HUNDRED AND FIFTY -THREE THOUSAND; THREE HUNDRED AND EIGHT DOLLARS ($153,308.00), in lawful money of the United States, to be paid in Denton County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors, and assigns,jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement, which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract, identified by Ordinance, with the City of Denton, the Owner, dated the 15th Day of September, 2015, acopy of which is hereto attached and made apart heroof, forthe Construction Services stated within Contract #5923 - Construction of City of Denton Civic Center Roof Renovation Project. NOW, THEREFORE, ifthe Principal shall well, truly and faithfully perform and fulfill all ofthe undertakings, covenants,terms, conditions and agreements of said Contract in accordance with the Plans, Specifications and Contract Documents during the original term thereof and any extension thereof which may be granted by the Owner, with or without notice to the Surety, and during the life of any guaranty or warranty required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby waived; and, ifthe Principal shall repair and /or replace all defects due to faulty materials and workmanship that appear within a period of two (2) years from the date of final completion and final acceptance of the Work by the Owner; and, ifthe Principal shall fully indemnify and save harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so perform herein and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect. EXHIBIT 4 PROVIDED FURTHER, that ifany legal action be filed uponthis Bond, exclusive venue shall lie in Denton County, State of Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension oftime, alteration or addition to the terms ofthe Contract, orto the Work to be performed thereunder, orto the Plans, Specifications, Drawings, etc., accompanying the same, shalI inanywise affect its obligation onthis B ond, and it does hereby waive notice ofany such change, extension oftim e, alteration or addition tothe tenns ofthe Contract, orto the Work to be performed thereunder, orto the Plans, Specifications, Drawings, etc. This Bond is given pursuant to the provisions ofChapter 2253 ofthe Texas Government Code, as amended, and any other applicable statutes ofthe State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County towhom anyrequisite notices may bedelivered and onwhom service ofprocess maybe had in, matters arising out of such suretyship, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes ofthe State ofTexas. IN WITNESS WHEREOF:,this instrument is executed in 3 copies, each one ofwhich shall be deemed an original, this the 28th day of August, 2015. ATTEST: PRINCIPAL curl, Inca BS Mec an� " �S l t "1 ".I" l Y -_ _ __ _.._. BY: WITNESS: SURETY Hartford Fire Insurance Corn an BY: t rac T%`Aer n.. 117E ERNE II"N 1? A "T The Resident Agent ofthe Surety in Denton County, Texas for delivery ofnotice and service ofthe process is: NAME: Misty Links STREET ADDRESS: 1212 N Locust St, Denton, TX (NOTE: Date of Performance Bond must be date of Contract. IfResident Agent is not a corporation, give a person's name.) EXHIBIT 4 THE OBLIGATION TO PAY SAME is conditioned as 0dknpo: Whereas, the Principal entered into a certain Contract, identified by Ordinance, with the City nfDenton, the Owner, the l5thDay of Sg12J?,IbUr,r 0l5,u copy ofwhich io hereto attached and made a part hereof, for the Construction Services stated within Contract #5923 -Construction of City of Denton Civic Center Roof Renovation Project. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make prompt puyoueu1 0o all persons, firms subcontractors, corporations and ulabnuo10 supplying labor and/or material in the prosecution of the Work provided for in said Contract and any and all duly authorized modifloadouo of said Contract that may hereafter be made, notice ofwhich muodiOou1oun to the Surety being hereby expressly vvaivud, tboo this ohUgo1iVu shall hevoid; otherwise it uhu)) rnnouiu in full throe and effect. PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue shall lie in Denton County, Texas. AND PR(J\/D]BC> F\]RTBUBR` that the said Surety, for value received, hereby stipulates and agrees that oo change, extension of time, alteration or addition 10 the terms of the Contract, or0n the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the xmuc` shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition 0athe terms of the Contract, ortothe Work 1nbaporf0oued thereunder, or to the 9|uua, Specifications, Drawings, etc. EXHIBIT 4 This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such surety, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in 3copies, each one ofwhich shall be deemed an original, this the 28 "' day of August, 2015. ATIEST: BY: I SL .A- ,TAl"Y' WITNESS: PRINCIPAL CBS Mecha coral, IMc. BY: SURETY: Hartford Fire Insurance t�lprb� BY: The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is: BY TracTucke^r A"I" 1::(�1�1'�1:;"�" NAME: Misty Links STREET ADDRESS: 1212 N Locust St (NOTE: Date ofPayment Bond must be date of Contract. IfResidentAgent is not a corporaiion, give a person's name) EXHIBIT 4 Direct Inquiries /Claims to: POWER OF ATTORNEY THE HARTFORD BOND, T-4 One Hartford Plaza Hartford, Connecticut 06155 call: 888 - 266 -3488 or fax: 860 - 757 -5835 KNOW ALL PERSONS BY THESE PRESENTS THAT: A enc Code: 46- 503405 & 46- 503582 Hartford Fire Insurance Company, a corporation duly organized under the laws of the State of Connecticut Hartford Casualty Insurance Company, a corporation duly organized under the laws of the State of Indiana Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut Hartford Underwriters Insurance Company, a corporation duly organized under the laws of the State of Connecticut Twin City Fire Insurance Company, a corporation duly organized under the laws of the State of Indiana Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the State of Illinois Hartford Insurance Company of the Midwest, a corporation duly organized under the laws of the State of Indiana Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the State of Florida having their home office in Hartford, Connecticut, (hereinafter collectively referred to as the "Companies ") do hereby make, constitute and appoint, up to the amount of unlimited: Tracy Tucker, W. Lawrence Brown, Steven Tucker of Fort Worth, TX their true and lawful Attorney(s) -in -Fact, each in their separate capacity if more than one is named above, to sign its name as surety(ies) only as delineated above by ®, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on January 22, 2004 the Companies have caused these presents to be signed by its Assistant Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are and will be bound by any mechanically applied signatures applied to this Power of Attorney. q � a �w7,ww yaw rqy� z as %940 3w � it �pnw.rrr �c�: =g r" rx� .x p 1 97 7zz 0411 IJOY,d a �. 101 W. 3-- Wesley W. Cowling, Assistant Secretary STATE OF CONNECTICUT ss. Hartford COUNTY OF HARTFORD M. Ross Fisher, Assistant Vice President On this 3`' day of November, 2008, before me personally came M. Ross Fisher, to me known, who being by me duly sworn, did depose and say: that he resides in the County of Hartford, State of Connecticut; that he is the Assistant Vice President of the Companies, the corporations described in and which executed the above instrument; that he knows the seals of the said corporations; that the seals affixed to the said instrument are such corporate seals; that they were so affixed by authority of the Boards of Directors of said corporations and that he signed his name thereto by like authority. 0 Scott E. Pasch Notary Public CERTIFICATE My Commission Expires October 31, 2012 I, the undersigned, Assistant Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is still in full force effective as of 28th, August 2015. Signed and sealed at the City of Hartford. 11 y iii r a y .4 0- awr, ,v.s .wwarw yrara�e�iv'�/ 04 PiWkE�' r 4 0', p4 a76 9? "`�^,�� "q�.'1;�,�N +r w Mry�e „y�p,u4 *rrwawwM” ''� Gary W. Stumper, Assistant Vice President EXHIBIT 4 IMPORTANT NOTICE To obtain information or make a complaint: You may contact your agent. You may call Hartford Insurance Group at the toll free telephone number for information or to make a complaint at: 1- 800 - 392 -7805 You may also write to The Hartford: The Hartford Hartford Financial Products 2 Park Avenue, 5t" Floor New York, New York 10016 1- 212- 277 -0400 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1- 800 - 252 -3439 You may write the Texas Department of Insurance P.O. Box 149104 Austin, TX 78714 -9104 Fax Number (512) 475 -1771 Web: httr)://wwwtdi.state.tx.us E -mail: ConsumerProtection @tdi.state.tx.us PREMIUM OR CLAIMS DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for your information only and does not become a part or condition of the attached document. F- 4275 -1, rrX4275 -1 HR 42 H006 00 0807 Para obtener informacion o para someter una queja. Puede comunicarse con su agente. Usted puede Ilamar al numero de telefono gratis de The Hartford Insurance Group para indormacion o para someter una queja al 1- 800 - 392 -7805 Usted tambien puede escribir a The Hartford, The Hartford Hartford Financial Products 2 Park Avenue, 5t" Floor New York, New York 10016 1- 212- 277 -0400 Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companias, coberturas, derechos o quejas al: 1- 800 - 252 -3439 Puede escribir al Departamento de Seguros de Texas P.O. Box 149104 Austin, TX 78714 -9104 Fax Number (512) 475 -1771 Web: http: / /www.tdi.state.tx.us E -mail: ConsumerProtection @tdi.state.tx.us DISPUTAS SOBRE PRIMAS O RECLAMOS: Si tiene una disputa concerniente a su prima o a un reclamo, debe comunicarse con su agente primero. Si no se resuelve la disputa, puede entonces comunicarse con el departamento (TDI). UNA ESTE AVISO A SU POLIZA: Este aviso es solo para proposito de informacion y no se convierte en parte o condicion del documento adjunto. EXHIBIT 4 Exhibit G Insurance Requirements and Contractor Documentation EXHIBIT 4 AC<w?a CERTIFICATE OF LIABILITY INSURANCE I DATE (MMIDD[YYYY) L_8�l 2 0 1 �5 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER ranch Tucker Agency, Ltd. PHONE fl, (817)336-8520 (AW , No; (817) 336-6501 P 0 Box 2285 udvP tucke raaencv . com. Ft. Worth TX 76113 __1_!NsuRER ............. A, Insurance Cc .......... . . . .......... INSURED INSURER p -Ameri sure Partners Ins Co ­­ ............ . ............................... - .......... CBS Roofing Services (A Division JNSUREIRC:St Paul Fire & Marine Co . .. ................ of CBS Mechanical, Inc.) INSUREIRD79deral Insurance Comr)anv . ............ . . . . . 5001 W University Dr Denton TX 76207 11 S PFRF; COVERAGES CERTIFICATE NUMBER:CBS Roof 14-15 All Lines 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 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. ........... INSR ij—R TYPE OF INSURANCE OLICY NUMBER .............. . ..... POLICY EFF POLICY FXP ANM&)2ff= IMED121YYYYL LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 ----- X COMM�RCJAI, GFNFRAL I JABILITY DAMA6E_ffR'ENTEb ... ....... _crrram_e�- _$ 100,000 o A ._J Cn_A�MSWADE FilOCCUR Y Y CPP 2056599 07 _ _PRFMI,5uJfa _ __ - 9/1/2014 9/1/2015 MED EXP (Any one person) $ 5,000 • ACU Included --- I - --------- $ 1,000,000 • Contractual Liability GENERAL AGGREGATE 2,000,000 ------------------- , . ...................... GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS.C2MP/OPAGG $ 2,000,000 .......... ­­ .......... . . . $ AUTOMOBILE LIABILITY ................ COMBINED ` INGLE LIMIT fEa acddon6 _-L-1 AAQ, Q00 ANY AUTO B BODILY INJURY (Per person) $ 'BO'D'ILY AU OS SCHEDULED y y CA 2056597 06 9/1/2014 9/1/2015 INJURY ('P­e'r`acc`idsn't') $ AUTOS AUTOS NON-OWNED HIRED AUTOS AUTOS —1 1 PROPERIY DAMAGE 2� $ Underinsured motorist BI single $ 500,000 X UMBRELLA LIAB X 'OCCUR EACH OCCURRENCE $ 10,000,000 C EXCESS LIAB CLAIMS -MADE _ I _! AGGREGATE $ 10,000,000 DED X REr �;o $ 10,001 Y Y ZUP-11R14276-14-NF 9/1/2014 9/1/2015 $ A WORKERS COMPENSATION WC STATU- CTH- AND EMPLOYERS' LIABILITY Y d N may- . . ............ - ANY PROPRIETOR/PARTNER/EXECUTIVE — N E L EACH ACCIDENT S OFFICERIMEMBER EXCLUDED? I NIA (Mandatory In NH) WC 2056602 06 9/1/2014 9/1/2015 E L DISEASE - EA EMPLOYEE $ y Ues, describe under y ­­ ­ RIPTION,OF OPERATIONS below . .................................................................... E.L. DISEASE - POLICY LIMIT _$ 1, 00() . .. ...................................... ................................... .. . ............. Q9� Limit of Insurance 100,000 D Installation Floater 0663-61-30 WCE 1/14/2015 /14/2016 Deductible 5,000 t .. ... .. ....... DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) Contract #5923 - Denton Civic Center Roof Renovation Additional insured in favor of City of Denton applies to all policies except workers compensation if required by written contract. Waiver of subrogation in favor of City of Denton applies to all policies if required by written contract. All policies include blanket 30 day notice of cancellation if required by written contract. 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. 901B Texas Stsreet Denton, TX 76209 AUTHORIZED REPRESENTATIVE �Tracy Tucker/JUDY ACORD 25 (2010/05) ©1988 -2010 ACORD CORPORATION. All rights reserved. INS025 oninns) m Tho Ar()Pr) nnma nnri Innn nra raniatararl mnrite of Arr)Rn EXHIBIT 4 DATE (MMIDDIYYYY) �"" CERTIFICATE OF LIABILITY INSURANCE 8/31/2015 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. 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 endorsomont(s). PRODUCER CONTACT NAME, Tucker Agency, Ltd. PHONE, Ectla (817) 336 -8520 ( FAX No) (817)336 -6501 P 0 Box 2285v%ra c.. Ft. Worth TX 76113 INSURED City of Denton 901B Texas Street J,INSURER E:,,,,,, .._ Denton TX 76205 INSURER F...... COVERAGES CERTIFICATE NUMBER:UCP .- City of Denton 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. INSR .... ......... ......... AdoLiSUNR�......... IPO' tCYEFF ( POILtCYEXP TYPE OF INSURANCE ,T POLICY NUMBER I. IO MMD1 YY LIMITS .._. COMMERCIAL GENERAL LIABILITY I EACH OCCURRENCE $ 500,000 DAMAGE TO RENTED ......... .. A .. .. CLAIMS MADE 8.... OCCUR PREMISES (Fa Occurrence) $ X Owners & Contractors GL 2098372 00 09/16/2015 09/16/2016 MED EXP (Any one person) $ Protective Lisbil ity„ _,_ PERSONAL & ADV INJURY $ Q,EN1,AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 1,000,000 PV� O- x POLICY � ..1 JII.C'1, ( u LOC _ PRODUCTS - COMP/OP AGG 5 _ OT14FR�: -.. $ AUTOMOBILE LIABILITY tl OMWNED S0lQ',1" I IM0 (Eau arx Idatirly ANY AUTO BODILY INJURY Per person) $ _ ALL OWNED SCHEDULED BODILY INJURY (Par accident) 1 $ AUTOS NON -OWNED RCPERTw L)AMAGEa 1 $ HIRED AUTOS AUTOS }Pnr:,iPeldenE) ..1, .. _ $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION ER SATL)TF H AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR /PARTNER /EXECUTIVE E L EACH ACCIDENT $ OFFICER /MEMBER EXCLUDED? ( NIA (Mandatory In NH) E L DISEASE - EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E I Dlk X ASP:: -POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) Project: Denton Civic Center - Sections A & B CERTIFICATE HOLDER CANCELLATION! SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CBS Roofing Services (A Division THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN of CBS Mechanical, Inc.) ACCORDANCE WITH THE POLICY PROVISIONS. 5001 W University Dr. Denton, TX 76207 AUTHORIZED REPRESENTATIVE ©1988 -2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD INS025 r201401) EXHIBIT 4 INSURANCE REQUIREMENTS AND WORKER'S COMPENSENTATION REQUIREMENTS Respondent's attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their insurance carriers or brokers to determine in advance of Proposal /hid 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 inay be disqualfed ,om awtird gl'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, 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 timed however, Contractors are strongly advised to make such requests prior to proposailbid opening, since the Insurance requirements may not be modified or waived after proposalrbid opening unless a written eveeption has been submitted with the proposallbid 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 speci, jlcalions 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. 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. EXHIBIT 4 • 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 f flowing 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. EXHIBIT 4 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Cornbined Single Limits (CSL) of not less than 00 000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily it1jury and property damage liability arising out of the operation, maintenance and use of all autornobiles and inobile 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 Worker's 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 muned 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 perforaned 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 Worker's Compensation Commission (TWCC). [ X] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract, Coverage shall be on an `occurrence " basis and the policy shall be issued by the sarnc insurance company that carries the Contractor's liability insurance. Policy limits will be at least 5=900 000.+11-0 cornbined bodily injury and property damage per occurrence with a $1,000,000.09 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. EXHIBIT 4 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than �_ , each occurrence are required. [] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. [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. EXHIBIT 4 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 - certif cates 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 EXHIBIT 4 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; b. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self - Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which -entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days. after receipt of notice of breach from the governmental entity. EXHIBIT 4 Exhibit H Contractor Business Information EXHIBIT 4 City of Denton Purchasing Soi-S Texas St. Denton, rX76209 Phone- (940) 349-7100 Fax: (940) 349-7302 www.dentoni)urchasina.com Substitute W-9 Form The IRS-rd'Quir6t-all'veindOrsto complete Form. Thielriforift-fidin bn this fbrrrf muii§tWflIIdd66t,"tId d'dhd1'9ubM1dbdb�i3 vendor representative. All Information must be completed before a purchase order . or payment will be issued. Name as shown on your Income tax return: Tax I DISocial Security M Under penalties of perjury, I certilly that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am'Woifing for a number to be issued to me), and 2,. 1 am not subject to backup withholding because (a), I am exeroPt from backiip'wilholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am po ' bject to backup withholding as a r6sult of fi3iture to report all Interest or dividends, or (c) the IRS has notified me that I am no toner subject to backup )Withholding, and 3. 1 am a US citizeq or other U.S. person-for fededral tax purposes as defined at the bottom of this pageo, Authorized Stgna1ure-J,2ZZ_14. Printed Name: 9Md"MV9&kk9_X_�e �Wl�lfic Email: Websfte: Phone Number. %a3a1i__N9:7L_ Fax Numl)erqqo— 1--39qo Individual/ Limited Other ❑ Sole Corporation ❑ Partnership ❑ Liability ❑ Please specify: Proprietor Corporation Must designate C or 8 ❑ C ❑ Exempt Pavee Real Estate Equipment W2) Business Type R:ntaULease (At) ❑ Rental/Lease (A-9) ❑ MedkwHeaith Care I Services Only (A- Merchandise- Merchandise & El 7) ❑ Goods Only (A-7) M Seimicas (A-7) ❑ Legat FirnV'Aft" (A-G) Consultant/prof Proceeds from Fees (A-7) Real Estate r-1 Purchases (5) Type of Organization: Cl Minority ❑ Female Owned El Non Profit C] 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 cheated or organized In the United Slates 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 4 Remit Addresslif different from above) Company Name: Contact Name: _ Address: Email: Phone Number: Fax Number. ACH InfoMdon- Voiuntanr ABA Routing#: Contact Name: i Iwo) 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 % or until the City of Denton has sent me written notice of termination of the agreement. Vendor Signature Print Namelritle Date List Products acrd /or Services Interested In Bidding, For Internal Use Only ❑ New Vendor ❑ VendorChange Vendor Number ❑ Refund Requesting Department: Department Representative (Printed Name) Date: Purchasing Signature: Date: COD Page 2 9/2312011 EXHIBIT 4 Exhibit I Form CIQ Conflict of Interest Questionnaire FQRMO -T t iMtN T zx13r Session. Si ature r 1 rs'on doing, bminess with he governmental anti y bale City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -849, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 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 physical assessment services for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 5292 - awarded to Huguley Assessment Center in the three (3) year not -to- exceed amount of $347,040). FILE INFORMATION This Professional Services Agreement is for the performance of annual physicals for civil service Fire Department personnel. The agreement will establish a long term fixed price for services and allow the Fire Department to continue providing the annual physicals required by the Meet and Confer contract, standard operating procedures (SOP), and by some specialized certifications. Under the 2006 Federal Emergency Management Agency's Assistance to Firefighters Grant program, the Department was awarded funding to establish a health and wellness program. A portion of the funding was allocated for physical fitness assessments. A Professional Services Agreement was executed in 2008 with Huguley Assessment Center based on their experience performing physical evaluations specifically designed for fire fighters. As part of the 2015 Meet and Confer contract, the City agreed to provide annual physicals to civil service personnel. Additionally, an SOP was implemented establishing a health and wellness performance standard that requires the completion of annual physicals. Under the current agreement, trained medical personnel from Huguley Assessment Center perform a series of tests aimed at evaluating the physical condition of fire fighters. The assessment and tests are conducted on site and is scheduled to accommodate shift work. Personnel follow up individually with a physician from Huguley to review results, and final assessment documentation is provided to the Fire Department. The proposed agreement contains a list of specific medical tests and services to be provided by Huguley Assessment Center. This includes but is not limited to, a physical examination, administration of physical tests, chest x -rays, urine and blood analysis, and a physician consultation. Equipment is provided by Huguley Assessment Center. In 2013, the City's employee health clinic was incorporated into the process and worked closely with Huguley to provide services within their current resources. The health clinic does not have the reporting capabilities City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -849, Version: 1 required to produce the reports required for the specialized certifications held by some fire fighters. The health clinic also could not accommodate the multiple shifts that are carried out by the fire fighters. In 2014, Texas Woman's University (TWU) was contacted by the Fire Department to consider offering their services for the annual physical assessments. After discussing the City's requirements for the assessment, it was determined that TWU does not have the capabilities to conduct the assessments as required by the City. There are no other known providers in the area specializing in the physical testing and evaluation of fire fighters. Huguley Assessment Center provides a physical assessment program specifically designed for fire fighters. They have extensive knowledge and experience in the field, providing their services to over twenty (20) fire departments in the Metroplex. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. PRIOR ACTION /VIEW (COUNCIL, BOARDS, COMMISSIONS) A Professional Services Agreement with Huguley was approved by the City Manager on August 15, 2008 in the amount of $98,000. There have been no changes or updates since the original agreement. RECOMMENDATION Approve a Professional Services Agreement for annual fire fighter physical assessments with Huguley Assessment Center in the three (3) year not -to- exceed amount of $347,040. PRINCIPAL PLACE OF BUSINESS Huguley Assessment Center Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the annual physical assessments as defined in the Professional Services Agreement. FISCAL INFORMATION The services to be performed under this contract will be paid annually from the Fire Department operating account in the General Fund beginning in FY 2015 -16. Requisition# 124935 has been entered in the Purchasing software system. EXHIBITS Exhibit 1- Ordinance Exhibit 2- Professional Services Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 9/10/2015 File M ID 15 -849, Version: 1 For information concerning this acquisition, contact: Robin Paulsgrove at 349 -8840. City of Denton Page 3 of 3 Printed on 9/10/2015 h rvvm d by I cx:ls i''I 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 PHYSICAL ASSESSMENT SERVICES FOR THE CITY OF DENTON FIRE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5292— AWARDED TO HUGULEY ASSESSMENT CENTER IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $347,040). 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 Huguley Assessment Center to provide annual physicals for civil service Fire Department personnel for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5292 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 _ A BY: DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 PROFESSIONAL SERVICES AGREEMENT FOR DENTON FIREFIGHTERS ANNUAL PHYSICAL ASSESSMENTS STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into on , 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 Huguley Assessment Center, with its corporate office at 11801 South Freeway, Suite 128, Fort Worth, Texas 76115, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, annual physical assessments for the Denton Fire Department's firefighters. 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 Services, which is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein. B. To perform all those services set forth in CONSULTANT's proposal including unit prices for various health assessments and screenings, which proposal is attached hereto and made a part hereof as Exhibit "B" as if written word for word herein. DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 C. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above - described Basic Services, are described as follows: A. Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. B. Sampling, testing, or analysis beyond that specifically included in Basic Services. C. Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties, including the preparation of engineering data and reports for assistance to the OWNER. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER. 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 expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of firefighters physical assessments. 2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, Page 2 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "B" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reimbursement for direct non -labor expenses not to exceed $347,040 for the three -year term. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; 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 City Manager or his designee, or which is not submitted 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, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit `B." Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1 %) per month from the said thirtieth (30ffi) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1 %) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." Page 3 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 ARTICLE VI 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 subcontractors or subconsultants. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT and CONSULTANT's subcontractors or subconsultants 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 these services, and OWNER's use of these documents in other services shall be at OWNER's sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another task order or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that task order. ARTICLE VIII 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. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT 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 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, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. Page 4 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 ARTICLE X 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 that has a rating with Best Rate Carriers of at least an A or better: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. D. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The General Liability and Auto Liability insurance policies shall name the OWNER as an additional insured. CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies. ARTICLE XI 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 XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' 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 affected 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 non - performance, and not less than thirty (30) calendar days to cure the Page 5 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 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 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 to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. 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 use. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: To OWNER: Dayne Berkner Texas Health Huguley Assessment Center City of Denton George C. Campbell, City Manager 215 East McKinney 11846 Med Park Dr. Denton, Texas 76201 Burleson, TX 76028 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. Page 6 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of fifteen (15) pages and two (2) exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XVIII 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 XIX 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, or 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 supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. Page 7 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 ARTICLE XX 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. ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXII MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: OWNER's Scope of Services (Exhibit "A ") and CONSULTANT's Proposal (Exhibit "B "). B. The 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 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 OWNER 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 OWNER 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 CONSULTANT which must be payable within five business days of receipt of an 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 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. Page 8 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Dayne Berkner, Shannon Becerra, Brandon HargraveSUMe -00A Rose, Jaime nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, 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 thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform 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. IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of 2015. Page 9 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Docu5igned by: John Knight BY: ('.,91,,,,'.2A,,4..,-, WITNESS: CONSULTANT E Docu5igned by: 0' V , 1°JAvur A5P QQCT.4ZFdnnAARF AUTHORIZED SIGNATURE, TITLE Page 10 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder 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 bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid 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 bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the 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 bid 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 Page 11 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 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. 0 Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled before the expiration date. e 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. e 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. e 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. Page 12 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 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: 0 Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. 0 Coverage B shall include personal injury. 0 Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 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: 0 any auto, or 0 all owned, hired and non -owned autos. DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 [ ] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's 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 Worker's 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 combined bodily injury and property damage per occurrence with a aggregate. [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific Page 14 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Page 15 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 EXHIBIT "A" PHYSICAL ASSESSMENT FOR CITY OF DENTON FIRE DEPARTMENT FIREFIGHTERS SCOPE OF SERVICES Professional medical services are needed to conduct physical assessments of the Denton Fire Department (DFD) firefighters. A comprehensive medical assessment includes: Complete bloodwork panel Cardiac stress test Vision exam Hearing exam Respiratory function test Heavy metals bloodwork panel for Hazardous Materials (HazMat) Technicians Chest x -rays for HazMat Technicians Additional services include: Physical fitness assessments Body mass index Flexibility test Muscle strength test Core endurance test Aerobic endurance test (cardiac stress test) Upon request, provide records to Texas Task Force 1 for participating firefighters. The City of Denton's (City's) intentions and expectations include the provision of an individual release form for each firefighter, signed by a physician, confirming that the individual is ,'medically cleared for duty," or if "additional medical information is needed." This release should be provided to the City within sixty (60) days after the assessments. The consultant shall invoice the City within 30 days of the completion of service. The consultant will provide all personnel, equipment, and supplies as needed for the assessments. The City will provide the facility to conduct the assessments. PSA 95292 September 2015 DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EVWITBI* 2 Texas Health Huguley Hospital italSM The Huguley Assessment Center agrees to perform the following physical assessments for the Denton Fire Department for the year 2015 at the quoted price, with the option for two 1 -year periods. The assessments will include: 1) Physician Examination 2) Graded Exercise Treadmill Test 3) Blood Analysis • Chemistry • CBC with Differential * HIV * Hepatitis B Titer 4) Pulmonary Function Test 5) Audiometric Screening 6) Vision Screening 7) Fitness Testing 8) PA and Lateral Chest X -ray 9) TRAVEL BLOOD WORK +CXR PHYSICAL /TREADMILL Total Assessment Cost Additional Testing as needed: 1) Fecal/Occult 2) Hepatitis C titer 3) MMR titer 4) Varacella titer 5) Tetanus shot 6) PSA (males 45 or older) 7) Hazmat Screening $425.00 $145.00 $280.00 $10.00 $50.00 $30.00 $30.00 $40.00 $35.00 $225.00 All assessments will be done on -site in the city of Denton at a location and dates to be determined. All fitness testing will be scored using the Huguley Assessment Center fitness standards. Personnel who score Superior or Excellent on their fitness assessment will receive a complimentary t- shirt. All stress tests and EKG's will be reviewed and interpreted by the Huguley Assessment Center physicians. All personnel who are found to have an abnormal stress test will be referred to the appropriate specialist. TexasHealth H uguley.org DocuSign Envelope ID: 79F58820- 2E2B- 48D7- 9EF0- FD4A710787E8 EXHIBIT 2 The individual will be notified of the results in writing and have 60 days from that point to address the specified need. Upon completion of the assessment, all fire personnel will be given a medical category rating based on the results of the testing. These tests will be reported to the appropriate Denton Fire personnel in writing and signed by the physician who performed the physical examination. The Huguley Assessment Center will maintain all charts, evaluations, and other related documents. The Assessment Center will comply with all applicable federal and state laws and local ordinances regarding confidentiality of medical information. The Huguley Assessment Center will provide the City of Denton related hardcopies, records, and computer files upon request if the employee signs a Release of Information form due to the HIPA law. Dayne Berkner is the Manager of the Assessment Center. He can be reached at 817 -551 -2560 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -851, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year service subscription for the CodeRED Emergency Notification System and CodeRED Weather Warning Service, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3964- awarded to Emergency Communications Network, Inc. for a three (3) year not -to- exceed amount of $134,000). FILE INFORMATION CodeRED Emergency Notification System allows the Emergency Management Coordinator in the Fire Department and other authorized individuals to utilize a web -based program to place telephone calls at high speed to the citizens of Denton during emergency situations such as hazardous materials spills, missing children, special events, etc. The System can also be used for notification of groups such as off -duty personnel to report to work, Emergency Operations Center activations, Leadership Team notifications, etc. The service agreement provided by The Emergency Communications Network, LLC for the standard CodeRED System is $29,532 annually for a three (3) year total cost of $88,596 (Exhibit 1). A contingency amount of $1,103 is included in the award amount to cover any possible additional system minutes, updates, and maintenance costs. Another component of the system, CodeRED Weather Warning Service, is a prerecorded weather warning notification process that can automatically call residents when warnings are issued by the National Weather Service for tornadoes, flash flooding, severe thunderstorms, and winter storms. This additional service for the prerecorded weather warning notification is $14,767 annually, for a three (3) year total amount of $44,301 (Exhibit 2). Therefore, staff is recommending approval of the complete system cost including a contingency amount for three (3) years in the not -to- exceed amount of $134,000. The Technology Services department could not identify any local vendors that could provide this type of service. Therefore, procuring this service from the above vendor is the best value for the City of Denton (Exhibit 3). Emergency Communications Network, Inc. is the sole - source vendor for service of the CodeRED Emergency Notification and CodeRED Weather Warning Service (Exhibit 4). Section 252.022 of the Local Government Code provides that procurement of commodities and services that are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -851, Version: 1 RECOMMENDATION Technology Services recommends awarding to Emergency Communications Network, Inc. for service subscription for CodeRED in a three (3) year not -to- exceed amount of $134,000. PRINCIPAL PLACE OF BUSINESS Emergency Communications Network, Inc. Ormond Beach, FL ESTIMATED SCHEDULE OF PROJECT This is a three year contract which will provide the CodeRED service through September 30, 2018. FISCAL INFORMATION Funding for this item is budgeted in Technology Services Fund account 830500.7804 beginning October 1, 2015. FYHIRITC Exhibit 1: Service Agreement Exhibit 2: Addendum Exhibit 3: Staff Memo Exhibit 4: Sole Source Letter Exhibit 5: Ordinance Exhibit 6: Signed Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Melissa Kraft at 349 -7823. City of Denton Page 2 of 2 Printed on 9/10/2015 Exhibit 1 CODERED SERVICES AGREEMENT This CodeRED® Services Agreement ( "Agreement ") is made and effective as of October 7, 2015 (the "Effective Date ") by and between Emergency Communications Network, LLC. a Delaware Limited Liability Company ( "Licensor") located at 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174 and City of Denton, a body politic and corporate of the State of Texas ( "Licensee ") located at 332 East Hickory Street, Denton, TX 76201. Licensor is the owner of a service identified as "CodeRED® Emergency Notification System" (the "Service "), which is designed to allow authorized licensed users to have access 24 hours a day, 7 days a week for the purpose of generating high -speed notifications to targeted groups via an Internet - hosted software application. Licensee desires to utilize the Service for the purpose of communicating matters of public interest and concern. The parties agree as follows: 1. License: Licensor grants Licensee a non - exclusive and non - transferable license (the "License ") to use the Service for Licensee's own purpose, in accordance with the terms of this Agreement. Licensor reserves the right to either charge additional fees or terminate this Agreement if other parties not contemplated in this Agreement are granted access to the Service by Licensee. Licensee assumes full and complete responsibility for the use of the Service by anyone whom Licensee permits to use the Service or who otherwise uses the Service through Licensee's access codes. Licensee may not assign, license, sublicense, rent, sell or transfer the License, the Service, those codes used to access the Service, or any rights under this Agreement. To access the Service, Licensor will provide Licensee with up to five 5 unique user name(s) and password(s). Additional users pass codes may be obtained at an additional annual fee as outlined in Exhibit A, attached hereto and incorporated by reference. 2. Ownership: Licensee also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Service or any software provided. The Licensee's License confers no title or ownership in the Service or its underlying technology. 3. Functionality: The Service provides the ability for Licensee to generate high -speed notifications to geographically selected calling areas and /or listed databases via an Internet - hosted software application. The Service utilizes an interactive voice response telephone service to record Licensee voice messages and initiate telephone call -out projects. Licensee's community database(s) shall be limited to containing contact data located within the geographic boundaries (determined by Lat/Lon coordinates) of the City of Denton, Texas (the "Calling Area "). Licensee may only place calls via the system to telephone numbers assigned within the 48 contiguous United States of America. International call rates may be set by separate agreement. Any additional Service functions will be charged at the rates on Exhibit A. 4. Term: This Agreement, and the License extended herein, will continue for a period of three (3) years (the "Initial Term ") commencing on the Effective Date. Upon termination of this Agreement, whether by expiration of the Initial Term, any Renewal Term (as hereinafter defined) (the Initial Term and all Renewal Terms, collectively, the "Term ") or as otherwise set forth herein, Licensee's access to the Service will be terminated and all System Minutes remaining on account shall transfer solely to Licensor. 5. Costs for the Service: During the Term of this Agreement, Licensee agrees to pay all costs and fees for utilizing the Service, as described in Exhibit A, and as set forth in this paragraph. Licensee understands and agrees that it will purchase prepaid minutes for the Service ( "System Minutes "). Licensee further understands and agrees that whenever Licensee utilizes the Service, the actual calling minutes used by Licensee while utilizing the Service will be deducted from the balance of System Minutes remaining in Licensee's System Minutes account or bank. Licensee is responsible to maintain, at all times, a sufficient balance of System Minutes on account. Payment for the Service or System Minutes is due and payable upon receipt of invoice (ROI). Finance charges at a rate of 1% per month (12% per annum) will be charged on all balances outstanding beyond 60 days. All payments due under this Agreement shall be paid to: Emergency Communications Network, LLC at 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174. Licensee understands and agrees that the prices set forth on Exhibit A are not final until this Agreement has been fully executed, and that it Emergency Communications Network, LLC Page 1 of 6 Initials CodeRED® Services Agreement Licensor Licensee is at the Licensor's discretion to honor such prices in the event this Agreement has not been returned to the Licensor within 90 days from the date this Agreement was drafted for the Licensee. 6. Free Testing and Training Minute Blocks: Licensee is allotted free time on the system which runs the Service for the purpose of testing and training. Licensee understands and agrees that the following conditions must be met in order for Licensee to utilize the free minute bank specified in Exhibit A: a) Minutes used for testing and training will be deducted from Licensee's minute bank at the time of using the Service; b) Licensee must notify Licensor in writing within 60 days from the date the Service was used for testing or training, specifying qualified project(s) and minutes used, to request that such minutes be designated as free minutes and restored to the minutes that were deducted from Licensee's System Minute bank. Licensee understands and agrees that, if Licensee fails to notify Licensor within 60 days of the use of the Service, the minutes used will not be eligible for restoration as free minutes, and will remain deducted from Licensee's System Minute bank as described above; c) Any unused minutes are not transferable, and shall only roll over by written agreement; and d) Licensor will have the final right to deem all free calling minutes eligible or ineligible for reimbursement under this paragraph. 7. Annual System Minute Bank Replenishment: Each year, Licensee will have access to 125.000 System Minutes. The System Minute bank will be refilled every year, to 125.000 System Minutes, upon the anniversary of the Effective Date, as set forth in this Agreement. System Minutes are not transferable and do not rollover from year to year, unless otherwise paid for and agreed in writing. If the entire bank of System Minutes is exhausted during the given year, Licensee will be required to repurchase System Minutes according to the System Minute bank refill provisions described herein. 8. Discount Contract Extension: Upon completion of the Initial Term or any Renewal Term (as hereinafter defined) the Term of this Agreement will automatically extend for an additional three -year period (each a "Renewal Term "), except as otherwise set forth herein. This contract extension provision will continue to extend the Agreement by three (3) additional years at the end of the Initial Term and each Renewal Term. Either party may cancel this renewal provision by submitting written notice to the other no less than 30 days prior to the end of the Initial Term or then current Renewal Term. In the event the Agreement is extended: a) Licensee's System Minute bank will be replenished to the annual 125.000 minute balance; b) Licensor will update its systems to extend the active software License and associated access codes for three additional years of use; c) Licensor will invoice Licensee for additional year(s) of Service at the rate of eiahty -eight thousand five hundred nine -six dollars 88,596) per three - ear Renewal rerra which may he paid in Installments of twenty -nine thousand five hundred thirty -two dollars ($29,532) per year, and d) Licensee agrees to pay the contract extension fee set forth in this paragraph for all years in the Renewal Term upon receipt of invoice from the Licensor, subject to the terms as set forth in paragraph 5. Minute Bank Refill Feature: The parties recognize that Licensee may utilize the Service in a manner that results in Licensee exceeding the amount of prepaid System Minutes in Licensee's System Minute bank. In the event that using the Service completely exhausts Licensee's remaining prepaid System Minute bank, Licensor will immediately refill Licensee's System Minute bank with a block of 12.500 System Minutes, and will invoice Licensee for this block of minutes at the Additional System Minute price as indicated in Exhibit A. Licensee shall pay Licensor for all Additional System Minute blocks upon receipt of invoice from Licensor, subject to the same terms as set forth in paragraph 5. Licensee understands and agrees that it is required to maintain a System Minutes balance in its System Minutes bank at all times, and agrees to purchase Additional System Minute blocks as needed in order to maintain a positive System Minute balance. The purpose of this refill feature is to Emergency Communications Network, LLC Page 2 of 6 Initials CodeRED® Services Agreement Licensor Licensee ensure that calls being placed via the Service are not interrupted as the result of Licensee's depletion of its System Minutes. 10. Termination: Licensee or Licensor may terminate this Agreement at the completion of the Initial Term or the then - current Renewal Term by providing the other with no less than 30 days advance written notice prior to the end of the Term. Licensee understands and agrees that failure to provide notice as set forth herein shall result in automatic renewal. Upon termination of this Agreement, Licensee will return all Confidential Information (as hereinafter defined) and copies to Licensor. Licensor, in its sole discretion, may also terminate this Agreement: a) for any reason by providing no less than 30 days advance notice, and in such case, Licensor will refund to Licensee an amount equal to the lesser of the monthly - prorated balance of the annual fee based on the number of days left in the term of the Agreement or the value of the balance of System Minutes in Licensee's System Minute bank as calculated by multiplying the remaining System Minutes by the additional system minute price on Exhibit A; or b) immediately, and without further notice, as a result of Licensee's breach of this Agreement, and in such case, no fees paid hereunder shall be refunded. Upon termination, Licensee agrees to remove from Licensee's computer(s), and any computers within Licensee's control, any and all files and documents related to the Service. 11. Copyright: Licensee understands and agrees that United States copyright laws and international treaty provisions protect the Service. Except for the limited License provided for herein, Licensor reserves all rights in and to the Service and all underlying data, compilations, and information maintained by Licensor relating to the Service, including but not limited to, the source or object code. Licensee shall not make any ownership, copyright or other intellectual property claims related to the Service or data processed through the Service. 12. Representations and Warranties: Licensee acknowledges and agrees that: (a) the Service is run by software that is designed to be active 24 hours per day, 365 days per year; software in general is not error -free and the existence of any errors in Licensee's software used in conjunction with the Service shall not constitute a breach of this Agreement; (b) in the event that Licensee discovers a material error which substantially affects Licensee's use of the Service, and Licensee notifies Licensor of the error, Licensor shall use reasonable measures to restore access to the Service, provided that such error has not been caused by incorrect use, abuse or corruption of the Service or the Service's software or by use of the Service with other software or on equipment with which it is incompatible by Licensee or a third party accessing the Service through Licensee's passcodes; (c) Licensee is responsible for maintaining access to the Internet in order to use the Service; Licensor in no way warrants Licensee's access to the Internet via Licensee's Internet Service Provider(s); (d) Under certain rare instances not all technologies are compatible without manual intervention by both parties. Licensee agrees that its staff will cooperate with Licensor's staff to make necessary modifications to allow the Service to perform; and (e) the individual signing on behalf of Licensee is an authorized officer, employee, member, director or agent for Licensee and has full authority to cause Licensee to enter into and be bound by the terms of this Agreement and this Agreement fully complies with all laws, ordinances, rules, regulations, and governing documents by which Licensee may be bound. 13. Security: Licensor will use commercially reasonable practices and standards to secure and encrypt data transmissions. Licensee understands and acknowledges that Licensor is providing the Service on the World Wide Web through an "upstream" third party Internet Service Provider, utilizing public utility services which may not be secure. Licensee agrees that Licensor shall not be liable to Licensee in the event of any interruption of service or lack of presence on the Internet as a result of any disruption by the third party Internet Service Provider or public utility. Licensee agrees that Licensor cannot guarantee the integrity of any Licensee supplied or user supplied data. Any errors, duplications, or inaccuracies related to Licensee or user supplied data will be the responsibility of the Licensee. 14. Disclaimer: In no event (even should circumstances cause any or all of the exclusive remedies to fail their essential purpose, and even if Licensor has been advised of the possibility of such damages) shall Licensor, its officers, directors, managers, members employees or agents, be liable for any indirect, punitive, special, incidental or consequential damages of any nature (regardless of whether such damages are alleged to arise in contract, tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in connection with or ensuing from the existence, furnishing, function, or Licensee's use of any item or products or services provided for in this Agreement. Licensee understands that the cumulative liability of Licensor for any Emergency Communications Network, LLC Page 3 of 6 Initials CodeRED® Services Agreement Licensor Licensee and all claims relating to the Service provided by Licensor shall not exceed that total amount paid by Licensee for the most recent payment made by Licensee to Licensor. The Service is provided as -is, and Licensor disclaims all warranties express or implied, and does not warrant for merchantabilit or fitness of a particular purpose. Licensee recognizes that once email and text messages have been released from Licensor's equipment, the ultimate delivery of the messages depends on the message recipient's local network. As a result Licensor cannot guarantee the delivery of email and text messages to a recipient. 15. Appropriate Use of The Service: To access the Service, Licensor will provide Licensee with unique user name(s) and password(s). Licensee agrees to maintain such user name(s) and password(s) as private and confidential information. Licensee agrees to use the Service in a way that conforms with all applicable laws and regulations. Licensee agrees not to initiate a call, such that the same call is to be delivered to two (2) or more lines of a business. Licensee specifically agrees not to make any attempt to gain unauthorized access to any of Licensor's systems or networks. Licensee agrees that Licensor shall not be responsible or liable for the content of the message(s) created by Licensee, or by those who access the Service using Licensee's codes, or otherwise delivered by the Service on behalf of Licensee. Licensee agrees to defend, indemnify and hold harmless Licensor and its affiliates, employees, officers, directors, managers, members and agents from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, whether brought by a third party, arising from any violation of this Agreement by Licensee; from the content, placement, or transmission of any messages or materials sent or maintained through Licensee's accounts, or use of the Service through Licensee's account. Licensee shall be responsible for compliance with all applicable laws regarding outbound telemarketing, which may include, but are not limited to the Federal Telephone Consumer Protection Act of 1991, The Telemarketing and Consumer Fraud and Abuse Prevention Act of 1999 and the rules and regulations promulgated thereunder, as well as State and Local telemarketing laws and requirements. Licensee will be solely responsible and liable for any such violations and shall defend, indemnify and hold Licensor harmless from all lawsuits, demands, liabilities, damages, claims, losses, costs or expenses, including attorneys' fees (whether by salary, retainer or otherwise), arising out of or resulting from, in whole or in part, a violation of such laws. 16. Confidentiality: Licensor acknowledges the confidential nature of Licensee and user supplied data and files that it is to prepare, process or maintain under this Agreement, and agrees to perform its duties in such a manner as to prevent the disclosure to the public or to any persons not employed by Licensor, any confidential data and files. Data collected by Licensor will remain secured on Licensor's equipment and will only be released upon mutual agreement by both parties or a court order of sufficient jurisdiction. Licensee understands and agrees that private citizens and other persons in the Calling Area may voluntarily contribute their contact information to be used in the Service, and that Licensor shall develop and maintain a database of such information, along with other information privately developed by Licensor (the "Data "). Licensee acknowledges and agrees that Licensor desires to maintain the privacy of the Data, and that Licensee shall take no steps to compromise the privacy of the Data. Licensee further acknowledges that Licensor shall disclose to Licensee certain confidential, proprietary trade secret information of Licensor (along with the Data, "Confidential Information "). Confidential Information may include, but is not limited to, the Service, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, user data, Calling Area data, financial information or business plans. Licensee agrees that, at all times during and after the termination of this Agreement, Licensee will not, without the express prior written consent of Licensor, disclose any Confidential Information or any part thereof to any third party. Nothing in this Agreement will be deemed to require Licensor to disclose any Confidential Information to Licensee or to prohibit the disclosure of any information in response to a subpoena or other similar order by a court or agency. The Licensee will promptly notify the Licensor of the receipt of any subpoena or other similar order and of any request under the Public Information Act or any other similar law, and will assist Licensor in preventing the disclosure of the Confidential Information pursuant to same to the extent required by Licensor. 17. Entire Agreement: This Agreement supersedes all prior understandings or agreements, whether oral or written, on the subject matter hereof between the parties. Only a further writing that is duly executed by both parties may modify this Agreement. The terms and conditions of this Agreement will govern and supersede any additional terms provided by Licensee, including but not limited to additional terms contained in standard purchase order documents and third party application terms, unless mutually agreed to, via written signature, by Licensor. The terms of this Agreement shall not be waived except by a further writing executed by both parties hereto. The Emergency Communications Network, LLC Page 4 of 6 Initials CodeRED® Services Agreement Licensor Licensee failure by one party to require performance of any provision shall not affect that party's right to require performance at any time thereafter, nor shall any waiver under this Agreement constitute a waiver of any subsequent action. 18. Notices: All notices or requests, demands and other communications hereunder shall be in writing, and shall be deemed delivered to the appropriate party upon: (a) personal delivery, if delivered by hand during ordinary business hours; (b) the day of delivery if sent by U.S. Mail, postage pre -paid; (c) the day of signed receipt if sent by certified mail, postage pre -paid, or other nationally recognized carrier, return receipt or signature provided and in each case addressed to the parties as follows: As to Licensor: Emergency Communications Network, LLC, 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174 As to Licensee: CitV of Denton Attu: Michael PetialunaVEmergency Management Director 332 last Hickory Street, Denton, TX 76201 Either party may change the address provided herein by providing notice as set forth in this paragraph. 19. General: Each party to this Agreement agrees that any dispute arising under this Agreement shall be submitted to binding arbitration according to the rules and regulations of, and administered by, the American Arbitration Association, and that any award granted pursuant to such arbitration may be rendered to final judgment. If any dispute arises hereunder, the prevailing party shall be entitled to all costs and attorney's fees from the losing party for enforcement of any right included in this Agreement, whether in Arbitration, a Court of first jurisdiction and all Courts of Appeal. 20. Interpretation and Severability: In the event any provision of this Agreement is determined by an arbitrator or court of competent jurisdiction to be void, the remaining provisions of this Agreement shall remain binding on the parties hereto with the same effect as though the void provision(s) had been limited or deleted, as applicable. 21. Counterparts and Construction: This Agreement may be executed in counterparts, each of which shall constitute an original, with all such counterparts constituting a single instrument. The headings contained in this agreement shall not affect the interpretation of this Agreement and are for convenience only. Licensee agrees that this Agreement shall not be construed against the Licensor as the drafter, and that Licensee has read and understands this Agreement, and had the opportunity to review this Agreement with legal counsel. 22. Survival: Certain obligations set forth herein represent independent covenants by which either party hereto may be bound and shall remain bound regardless of any breach of this Agreement and shall survive termination of this Agreement. IN WITNESS WHEREOF, the parties execute this Agreement on the date(s) indicated below. Licensee: Licensor: City of Denton, Texas Emergency Communications Network, LLC By: By: Printed Name: Printed Name: Title: Title: Date: Date: Emergency Communications Network, LLC Page 5 of 6 Initials CodeRED® Services Agreement Licensor Licensee Exhibit A — Service Charges Three (3) year Discount CodeRED Service Agreement $ 88,596.00 Payments due in annual installments of $ 29.532.00 Up to 125,000 Annual CodeRED System Minutes $ Included (see section 8) Additional System Minutes 500 minutes for testing and training Email and Text Messaging $ 0.25 per minute $ No Charge (see section 6) $ No Charge Up to 5 CodeRED user pass codes $ Included Additional pass codes may be purchased for an annual fee of $150.00 per pass code. Initial Residential Database Upload $ Waived One (1) CodeRED distance training session $ Included Additional distance training sessions may be purchased for $150.00 per hour (one hour minimum). System usage will be charged against Prepaid System Minutes at actual minutes of time connected while delivering prerecorded System calls. All calls will be billed in 6- second increments. Only connected calls (live connections, answering machine connections and fax tone connections) will result in connection charges being incurred. Database Accuracy Updates Licensor Supplied Database: "Database Accuracy Updates" ensure that the data population maintained by Licensor under this Agreement undergoes periodic accuracy checks using the Licensor's most current in -house compiled database including, but not limited to, household addresses and telephone numbers. It will be the sole responsibility of the Licensee to maintain database accuracy and request updates from the Licensor. One annual "Database Accuracy Update" will be performed by the Licensor upon request by the Licensee at no charge. Additional updates requested by Licensee will incur charges at the rate listed below after the update service is completed by Licensor. 3t per record in final updated database population. Licensee Supplied Database: A service labor fee of One Hundred Dollars ($100.00) per hour will be billed to Licensee for any data importing, manipulating, and loading any database supplied by Licensee or on Licensee's behalf to Licensor. $100 per hour for database maintenance Annual System Maintenance, including all Software Upgrades $ No Charge Licensee may be upgraded to latest version(s) of the Service as available Professional Services Upon Request: $135 /hour Licensor shall perform professional services as requested from time to time by Licensee in its sole discretion. Emergency Communications Network, LLC Page 6 of 6 CodeRED® Services Agreement Initials Licensor Licensee Exhibit 2 CodeRED® Weather Warning Service Addendum This is an Addendum, effective October 7. 2015 (the "Effective Date "), to the CodeRED Services Agreement ( "Agreement ") entered into, as of the Effective Date, by and between the City of Denton (hereinafter "Licensee ") a body politic of the State of Texas located at 332 East Hickory Street, Denton, TX 76201 and Emergency Communications Network, LLC (hereinafter "Licensor "). In consideration of the promises set forth herein and outlined in the Agreement, Licensee and Licensor agree to amend the CodeRED Services Agreement in the following manner: 1. The following terms shall be added to the original CodeRED Service Agreement: CodeRED® Weather Warning Service: Licensor's CodeRED Weather Warning Service (CRWW) expands the benefits of the CodeRED service to include the automatic launching of prerecorded Weather Warning call -out projects to Licensee approved subscribers. These automated call -outs are initiated by the issuance of a Severe Weather Bulletin by the National Weather Service (NWS), with no intervention on the part of Licensee or Licensor. Call recipients are determined by matching the geographic locations associated with a database of opt -in subscribers against the geographic polygon(s) associated with Severe Weather Warnings issued by NWS. CRWW Terms of Use: Subscribers: Severe weather events can occur at any time of day or night. Accordingly, CRWW calls will automatically be launched in response to the issuance of NWS Bulletins at any time, 24 hours /day. Unlike the CodeRED service which is pre - populated with calling data for residential and business telephones, the CRWW service targets the telephone numbers of ONLY those households and business that have CHOSEN to participate through an opt -in process. Residents and businesses within the City of Denton. Texas who wish to receive the CRWW calls can add their name and geographic location to the CRWW subscriber database via the Licensee's CodeRED Residential Update Website. This site is hosted by Licensor for the purpose of allowing citizens to add their contact information to both the CodeRED database and the CRWW database via the Internet. Subscribers shall be subject to the terms and conditions of the CRWW service, which can be reviewed at: http: / /ecnetwork.com /privacy - policy /. ONLY THOSE CITIZENS WHO OPT -IN TO THE CRWW SERVICE WILL BE ELIGIBLE TO RECEIVE WEATHER WARNING CALLS. LICENSEE MUST APPROVE ALL SUBSCRIBER ENTRIES PRIOR TO THEIR BEING ACTIVATED AND ENTERED INTO THE CALLING DATABASE. All subscriber data is the sole and exclusive property of Licensor. Limits on Calling Database: Citizens are allowed to enter up to two (2) telephone contact numbers for each CRWW address. Only addresses falling within the geography covered under the CodeRED Services Agreement are eligible to receive CRWW calls. Licensee is responsible for removing subscriber addresses that fall outside of its covered municipality prior to approving records via the on -line Residential Update approval process. CodeRED Minute Bank Balance: Calls placed automatically via the CRWW Service have no effect on the minute bank balance associated with the CodeRED Service. The additional fees (described below) for the CRWW Service include all minutes used in the delivery of all warning calls made during the term of this Addendum. License: The CRWW Service is available only as an add -on service module for Licensees of the CodeRED Service. The CRWW service license will not be provided under the terms of this Addendum unless a current active Standard CodeRED Services agreement is in effect. Page 1 of 2 Initials Licensor Licensee COST FOR CRWW: Licensee shall pay to Licensor forty -four thousand three hundred one dollars ($44,301) for the initial term of this Addendum, which shall coincide with the Initial Term of the Agreement, which shall be paid by Licensee in three (3) annual installments of fourteen thousand seven hundred sixty -seven dollars ($14,767). Thereafter Licensee shall pay forty - four thousand three hundred one dollars ($44,301) for each successive term of this Addendum, which shall coincide with any Renewal Term, and the full term of, the Agreement, which shall be paid by Licensee in three (3) annual installments of fourteen thousand seven hundred sixty -seven dollars ($14,767). Payment terms shall be identical to the terms contained in the original Agreement for the CodeRED Service. Pricing for CRWW is separate and independent from CodeRED Service Agreement pricing, and the CRWW service can be removed from the CodeRED Service by Licensee by providing 30 days written notice prior to the end of the then - current initial term or renewal term of the Agreement. Licensee will be notified of any price change for CRWW a minimum of 90 days in advance of the renewal date. TERM: The term of the CRWW Addendum shall commence as of the Effective Date and shall be for so long as Licensee maintains an active CodeRED Services Agreement and has paid the appropriate fees listed above. Upon termination of the CodeRED Services Agreement, access to the CRWW system will terminate and Licensor shall terminate all individual subscriber accounts. 2. This Addendum shall not modify any terms and conditions of the Agreement, which shall remain in force and effect for the term of the Agreement. CITY OF DENTON, TEXAS EMERGENCY COMMUNICATIONS Licensee NETWORK, LLC Licensor By: By: Name: Name: Title: Title: Date: Date: Page 2 of 2 EXHIBIT 3 Ck k * k �j *a V L* Wa st l71" DATE: September 4, 2015 TO: Elton Brock, Purchasing Manager The CodeRED Emergency Notification System is the existing service provided to The City of Denton and its Citizens for the ability to deliver high-speed customized pro-recorded critical messages in the event of emergencies. The CodeRED systern utilizes many features that individually and in total ity 'make Emergency Communications Network (ECN) and CodeRED a unique sole provider and that cannot be duplioated by any other system., A I lift, IJKOI I �Uojifk;4'li to] 1 0 11 3�� EXHIBIT 4 Emergency Communications Network' Stephanie Padgett City of Denton 601 East Hickory Street, Suite A Denton, TX 76201 Re: Emergency Communications Network, LLC ( "ECN ") CodeR:EDO Service Dear Ms. Padgett: 780 W, Granada 8004vard, SU44 200 Ormond Boach, FL 32P4 I E L 866 939 03311 F A x 386 676 1127 yr E a ecnetwork.com July 6, 2015 The CodeRED Emergency Notification System provides clients the ability to deliver high- speed, customized pre- recorded mass notifications. The CodeRED system utilizes many features that individually and in totality make ECN and CodeRED a unique sole provider. No other service provider may sell or license the CodeRED system, which is solely owned and operated by ECN. Below are many of the unique features of CodeRED, a service of the Emergency Communications Network that cannot be duplicated by any other system including: • ECN is the only emergency notification system provider authorized to utilize RealCall® patented technology. RealCall is ECN's proprietary technology. RealCall enables CodeRED to deliver accurate messages in their entirety without looping or repeating the message to answering machines and other voicemail devices. This revolutionary technology has been proven to maximize the efficiency of the local telephone infrastructure when telephone circuits are in their highest demand. Other technologies will leave partial, truncated or repeated messages - wasting valuable telephone circuit resources when they are most needed. (Unique process, Patented US Patent 6324262 BI) • CodeRED utilizes a unique Universal ANIO, a toll -free call back number that allows residents to call back and hear the last message that was delivered to their phone number. (Unique ability and technology) • Using Validate telephone number validation system, CodeRED is able to confirm every number in the customer's database to verify validity and identify addresses without valid phone numbers. (Unique ability and technology) • CodeRED offers the option to add CodeRED Weather WarningTM. Weather Warning delivers automated severe weather warnings to residents in the direct path of the storm within seconds of the alert being issued by the National Weather Service. Weather Warning is the only early warning system available to utilize the NOAA Storm Based Warning system's polygon data to pinpoint a storm and automatically call those who will be impacted first. (Unique ability and technology) • The CodeRED Mobile Alert app provides an additional location -based method to deliver CodeRED initiated notifications. The app is geo -aware to only alert subscribers within the affected area of the alert. The CodeRED Mobile Alert app allows clients to reach not only residents, but visitors passing through the area and also protects citizens when they travel outside their primary coverage area. (Unique ability and technology) • CodeRED has a Message Alert Origination application for launching Integrated Public Alert and Warning System (IPAWS) messages to open up a new communication channel in support of the FEMA program. This function is activated simultaneously to and within the same development step of all other CodeRED messages to be disseminated to the public. (Unique ability and technology) As you can see from the list of unique features above, the City of Denton has multiple reasons to sole source our CodeRED service. Many of our clients are able to immediately purchase the system through the sole- source method using the totality of these and other benefits. Please feel free to contact me if you have any questions. LEANNE SIEGFRIED GENERAL COUNSEL EMERGENCY COMMUNICATIONS NETWORK TEL: 386 676 0294 x 208 EMAIL: LSiegfried @ecnetwork.com WEB: www.ecnetwork.com OFFICE: 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174 Page 1 of 1 CodeRED11 CodeRED Weather Warning "' /. CodeEIP' EXHIBIT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THREE (3) YEAR SERVICE SUBSCRIPTION FOR THE CODERED EMERGENCY NOTIFICATION SYSTEM AND CODERED WEATHER WARNING SERVICE, WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 3964 - AWARDED TO EMERGENCY COMMUNICATIONS NETWORK, INC. FOR A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $134,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or 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 3964 Emergency Communications Network, Inc. $134,000 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or 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 5 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 3964 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: DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 CODERED SERVICES AGREEMENT This CodeRED® Services Agreement ( "Agreement ") is made and effective as of October 7, 2015 (the "Effective Date ") by and between Emergency Communications Network, LLC. a Delaware Limited Liability Company ( "Licensor ") located at 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174 and City of Denton, a body politic and corporate of the State of Texas ( "Licensee ") located at 332 East Hickory Street, Denton, TX 76201. Licensor is the owner of a service identified as "CodeRED® Emergency Notification System" (the "Service "), which is designed to allow authorized licensed users to have access 24 hours a day, 7 days a week for the purpose of generating high -speed notifications to targeted groups via an Internet - hosted software application. Licensee desires to utilize the Service for the purpose of communicating matters of public interest and concern. The parties agree as follows: 1. License: Licensor grants Licensee a non - exclusive and non - transferable license (the "License ") to use the Service for Licensee's own purpose, in accordance with the terms of this Agreement. Licensor reserves the right to either charge additional fees or terminate this Agreement if other parties not contemplated in this Agreement are granted access to the Service by Licensee. Licensee assumes full and complete responsibility for the use of the Service by anyone whom Licensee permits to use the Service or who otherwise uses the Service through Licensee's access codes. Licensee may not assign, license, sublicense, rent, sell or transfer the License, the Service, those codes used to access the Service, or any rights under this Agreement. To access the Service, Licensor will provide Licensee with up to five 5 unique user name(s) and password(s). Additional users pass codes may be obtained at an additional annual fee as outlined in Exhibit A, attached hereto and incorporated by reference. 2. Ownership: Licensee also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Service or any software provided. The Licensee's License confers no title or ownership in the Service or its underlying technology. 3. Functionality: The Service provides the ability for Licensee to generate high -speed notifications to geographically selected calling areas and /or listed databases via an Internet - hosted software application. The Service utilizes an interactive voice response telephone service to record Licensee voice messages and initiate telephone call -out projects. Licensee's community database(s) shall be limited to containing contact data located within the geographic boundaries (determined by Lat /Lon coordinates) of the City of Denton, Texas (the "Calling Area "). Licensee may only place calls via the system to telephone numbers assigned within the 48 contiguous United States of America. International call rates may be set by separate agreement. Any additional Service functions will be charged at the rates on Exhibit A. 4. Term: This Agreement, and the License extended herein, will continue for a period of three (3) years (the "Term ") commencing on the Effective Date. Upon termination of this Agreement, whether by expiration of the Term or as otherwise set forth herein, Licensee's access to the Service will be terminated and all System Minutes remaining on account shall transfer solely to Licensor. 5. Costs for the Service: During the Term of this Agreement, Licensee agrees to pay all costs and fees for utilizing the Service, as described in Exhibit A, and as set forth in this paragraph. Licensee understands and agrees that it will purchase prepaid minutes for the Service ( "System Minutes "). Licensee further understands and agrees that whenever Licensee utilizes the Service, the actual calling minutes used by Licensee while utilizing the Service will be deducted from the balance of System Minutes remaining in Licensee's System Minutes account or bank. Licensee is responsible to maintain, at all times, a sufficient balance of System Minutes on account. Payment for the Service or System Minutes is due and payable upon receipt of invoice (ROI). Finance charges at a rate of 1% per month (12% per annum) will be charged on all balances outstanding beyond 60 days. All payments due under this Agreement shall be paid to: Emergency Communications Network, LLC at 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174. Licensee understands and agrees that the prices set forth on Exhibit A are not final until this Agreement has been fully executed, and that it is at the Licensor's discretion to honor such prices in the event this Agreement has not been returned to the Licensor within 90 days from the date this Agreement was drafted for the Licensee. Emergency Communications Network, LLC Page 1 of 6 Initials CodeRED® Services Agreement Licensor Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 6. Free Testing and Training Minute Blocks: Licensee is allotted free time on the system which runs the Service for the purpose of testing and training. Licensee understands and agrees that the following conditions must be met in order for Licensee to utilize the free minute bank specified in Exhibit A: a) Minutes used for testing and training will be deducted from Licensee's minute bank at the time of using the Service; b) Licensee must notify Licensor in writing within 60 days from the date the Service was used for testing or training, specifying qualified project(s) and minutes used, to request that such minutes be designated as free minutes and restored to the minutes that were deducted from Licensee's System Minute bank. Licensee understands and agrees that, if Licensee fails to notify Licensor within 60 days of the use of the Service, the minutes used will not be eligible for restoration as free minutes, and will remain deducted from Licensee's System Minute bank as described above; c) Any unused minutes are not transferable, and shall only roll over by written agreement; and d) Licensor will have the final right to deem all free calling minutes eligible or ineligible for reimbursement under this paragraph. 7. Annual System Minute Bank Replenishment: Each year, Licensee will have access to 125,000 System Minutes. The System Minute bank will be refilled every year, to 125,000 System Minutes, upon the anniversary of the Effective Date, as set forth in this Agreement. System Minutes are not transferable and do not rollover from year to year, unless otherwise paid for and agreed in writing. If the entire bank of System Minutes is exhausted during the given year, Licensee will be required to repurchase System Minutes according to the System Minute bank refill provisions described herein. 8. Minute Bank Refill Feature: The parties recognize that Licensee may utilize the Service in a manner that results in Licensee exceeding the amount of prepaid System Minutes in Licensee's System Minute bank. In the event that using the Service completely exhausts Licensee's remaining prepaid System Minute bank, Licensor will immediately refill Licensee's System Minute bank with a block of 12,500 System Minutes, and will invoice Licensee for this block of minutes at the Additional System Minute price as indicated in Exhibit A. Licensee shall pay Licensor for all Additional System Minute blocks upon receipt of invoice from Licensor, subject to the same terms as set forth in paragraph 5. Licensee understands and agrees that it is required to maintain a System Minutes balance in its System Minutes bank at all times, and agrees to purchase Additional System Minute blocks as needed in order to maintain a positive System Minute balance. The purpose of this refill feature is to ensure that calls being placed via the Service are not interrupted as the result of Licensee's depletion of its System Minutes. 9. Termination: Upon termination of this Agreement, Licensee will return all Confidential Information (as hereinafter defined) and copies to Licensor. Licensor, in its sole discretion, may also terminate this Agreement: a) for any reason by providing no less than 30 days advance notice, and in such case, Licensor will refund to Licensee an amount equal to the lesser of the monthly - prorated balance of the annual fee based on the number of days left in the term of the Agreement or the value of the balance of System Minutes in Licensee's System Minute bank as calculated by multiplying the remaining System Minutes by the additional system minute price on Exhibit A; or b) immediately, and without further notice, as a result of Licensee's breach of this Agreement, and in such case, no fees paid hereunder shall be refunded. Upon termination, Licensee agrees to remove from Licensee's computer(s), and any computers within Licensee's control, any and all files and documents related to the Service. 10. Copyright: Licensee understands and agrees that United States copyright laws and international treaty provisions protect the Service. Except for the limited License provided for herein, Licensor reserves all rights in and to the Service and all underlying data, compilations, and information maintained by Licensor relating to the Service, including but not limited to, the source or object code. Licensee shall not make any ownership, copyright or other intellectual property claims related to the Service or data processed through the Service. Emergency Communications Network, LLC Page 2 of 6 Initials CodeREDO Services Agreement Licensor Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 11. Representations and Warranties: Licensee acknowledges and agrees that: (a) the Service is run by software that is designed to be active 24 hours per day, 365 days per year; software in general is not error -free and the existence of any errors in Licensee's software used in conjunction with the Service shall not constitute a breach of this Agreement; (b) in the event that Licensee discovers a material error which substantially affects Licensee's use of the Service, and Licensee notifies Licensor of the error, Licensor shall use reasonable measures to restore access to the Service, provided that such error has not been caused by incorrect use, abuse or corruption of the Service or the Service's software or by use of the Service with other software or on equipment with which it is incompatible by Licensee or a third party accessing the Service through Licensee's passcodes; (c) Licensee is responsible for maintaining access to the Internet in order to use the Service; Licensor in no way warrants Licensee's access to the Internet via Licensee's Internet Service Provider(s); (d) Under certain rare instances not all technologies are compatible without manual intervention by both parties. Licensee agrees that its staff will cooperate with Licensor's staff to make necessary modifications to allow the Service to perform; and (e) the individual signing on behalf of Licensee is an authorized officer, employee, member, director or agent for Licensee and has full authority to cause Licensee to enter into and be bound by the terms of this Agreement and this Agreement fully complies with all laws, ordinances, rules, regulations, and governing documents by which Licensee may be bound. 12. Security: Licensor will use commercially reasonable practices and standards to secure and encrypt data transmissions. Licensee understands and acknowledges that Licensor is providing the Service on the World Wide Web through an "upstream" third party Internet Service Provider, utilizing public utility services which may not be secure. Licensee agrees that Licensor shall not be liable to Licensee in the event of any interruption of service or lack of presence on the Internet as a result of any disruption by the third party Internet Service Provider or public utility. Licensee agrees that Licensor cannot guarantee the integrity of any Licensee supplied or user supplied data. Any errors, duplications, or inaccuracies related to Licensee or user supplied data will be the responsibility of the Licensee. 13. Disclaimer: In no event (even should circumstances cause any or all of the exclusive remedies to fail their essential purpose, and even if Licensor has been advised of the possibility of such damages) shall Licensor, its officers, directors, managers, members employees or agents, be liable for any indirect, punitive, special, incidental or consequential damages of any nature (regardless of whether such damages are alleged to arise in contract, tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in connection with or ensuing from the existence, furnishing, function, or Licensee's use of any item or products or services provided for in this Agreement. Licensee understands that the cumulative liability of Licensor for any and all claims relating to the Service provided by Licensor shall not exceed that total amount paid by Licensee for the most recent payment made by Licensee to Licensor. The Service is provided as -is, and Licensor disclaims all warranties, express or implied, and does not warrant for merchantability or fitness of a particular purpose. Licensee recognizes that once email and text messages have been released from Licensor's equipment, the ultimate delivery of the messages depends on the message recipient's local network. As a result Licensor cannot guarantee the delivery of email and text messages to a recipient. 14. Appropriate Use of The Service: Licensee agrees to use the Service in a way that conforms with all applicable laws and regulations, including but not limited to all laws regarding outbound telemarketing, the Federal Telephone Consumer Protection Act of 1991, The Telemarketing and Consumer Fraud and Abuse Prevention Act of 1999, as well as State and Local telemarketing laws and requirements. Licensee agrees not to initiate a call, such that the same call is to be delivered to two (2) or more lines of a business. Licensee specifically agrees not to make any attempt to gain unauthorized access to any of Licensor's systems or networks. Licensee agrees that Licensor shall not be responsible or liable for the content of the message(s) created by Licensee, or by those who access the Service using Licensee's codes, or otherwise delivered by the Service on behalf of Licensee. Licensee agrees to be solely responsible for any and all lawsuits, demands, liabilities, damages, claims, losses, costs or expenses, including its own and any awarded attorneys' fees (whether by salary, retainer or otherwise), from any claim, whether brought by a third party, arising from any violation of this Agreement by Licensee; from the content, placement, or transmission of any messages or materials sent or maintained through Licensee's accounts, or use of the Service through Licensee's account; and from any violations of any laws by Licensee. Emergency Communications Network, LLC Page 3 of 6 Initials CodeREDO Services Agreement Licensor Fj_ Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 15. Confidentiality: Licensor acknowledges the confidential nature of Licensee and user supplied data and files that it is to prepare, process or maintain under this Agreement, and agrees to perform its duties in such a manner as to prevent the disclosure to the public or to any persons not employed by Licensor, any confidential data and files. Data collected by Licensor will remain secured on Licensor's equipment and will only be released upon mutual agreement by both parties or a court order of sufficient jurisdiction. Licensee understands and agrees that private citizens and other persons in the Calling Area may voluntarily contribute their contact information to be used in the Service, and that Licensor shall develop and maintain a database of such information, along with other information privately developed by Licensor (the "Data "). Licensee acknowledges and agrees that Licensor desires to maintain the privacy of the Data, and that Licensee shall take no steps to compromise the privacy of the Data. Licensee further acknowledges that Licensor shall disclose to Licensee certain confidential, proprietary trade secret information of Licensor (along with the Data, "Confidential Information "). Confidential Information may include, but is not limited to, the Service, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, user data, Calling Area data, financial information or business plans. Licensee agrees that, at all times during and after the termination of this Agreement, Licensee will not, without the express prior written consent of Licensor, disclose any Confidential Information or any part thereof to any third party. Nothing in this Agreement will be deemed to require Licensor to disclose any Confidential Information to Licensee or to prohibit the disclosure of any information in response to a subpoena or other similar order by a court or agency. The Licensee will promptly notify the Licensor of the receipt of any subpoena or other similar order and of any request under the Public Information Act or any other similar law, and will assist Licensor in preventing the disclosure of the Confidential Information pursuant to same to the extent required by Licensor. 16. Entire Agreement: This Agreement supersedes all prior understandings or agreements, whether oral or written, on the subject matter hereof between the parties. Only a further writing that is duly executed by both parties may modify this Agreement. The terms and conditions of this Agreement will govern and supersede any additional terms provided by Licensee, including but not limited to additional terms contained in standard purchase order documents and third party application terms, unless mutually agreed to, via written signature, by Licensor. The terms of this Agreement shall not be waived except by a further writing executed by both parties hereto. The failure by one party to require performance of any provision shall not affect that party's right to require performance at any time thereafter, nor shall any waiver under this Agreement constitute a waiver of any subsequent action. 17. Notices: All notices or requests, demands and other communications hereunder shall be in writing, and shall be deemed delivered to the appropriate party upon: (a) personal delivery, if delivered by hand during ordinary business hours; (b) the day of delivery if sent by U.S. Mail, postage pre -paid; (c) the day of signed receipt if sent by certified mail, postage pre -paid, or other nationally recognized carrier, return receipt or signature provided and in each case addressed to the parties as follows: As to Licensor: Emergency Communications Network, LLC, 780 W. Granada Boulevard, Suite 200, Ormond Beach, FL 32174 As to Licensee: City of Denton, Attn: Michael Penaluna /Emergency Management Director, 332 East Hickory Street, Denton, TX 76201 Either party may change the address provided herein by providing notice as set forth in this paragraph. 18. General: a) If a dispute arises out of or relates to the Agreement, 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 Emergency Communications Network, LLC Page 4 of 6 Initials CodeRED® Services Agreement Licensor Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 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 Licensee and the Licensor 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 Agreement 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 Licensee and the Licensor 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. 19. Interpretation and Severability: In the event any provision of this Agreement is determined by a court of competent jurisdiction to be void, the remaining provisions of this Agreement shall remain binding on the parties hereto with the same effect as though the void provision(s) had been limited or deleted, as applicable. 20. Counterparts and Construction: This Agreement may be executed in counterparts, each of which shall constitute an original, with all such counterparts constituting a single instrument. The headings contained in this agreement shall not affect the interpretation of this Agreement and are for convenience only. Licensee agrees that this Agreement shall not be construed against the Licensor as the drafter, and that Licensee has read and understands this Agreement, and had the opportunity to review this Agreement with legal counsel. 21. Survival: Certain obligations set forth herein represent independent covenants by which either party hereto may be bound and shall remain bound regardless of any breach of this Agreement and shall survive termination of this Agreement. IN WITNESS WHEREOF, the parties execute this Agreement on the date(s) indicated below. Licensee: City of Denton, Texas By: Printed Name: Title: Date: r Docusig ed by John Knight C821996C2A2B439... Approved as to Legal Form Emergency Communications Network, LLC Page 5 of 6 CodeRED® Services Agreement Licensor: Emergency Communications Network, LLC By: Cad b David Di Giacomo Printed Name: Title: President /CEO Date: 9/8/2015 Initials Licensor E Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 Exhibit A — Service Charges Three (3) year Discount CodeRED Service Agreement $ 88,596.00 Payments due in annual installments of $ 29,532.00 Up to 125,000 Annual CodeRED System Minutes $ Included (see section 8) Additional System Minutes 500 minutes for testing and training Email and Text Messaging $ 0.25 per minute $ No Charge (see section 6) $ No Charge Up to 5 CodeRED user pass codes $ Included Additional pass codes may be purchased for an annual fee of $150.00 per pass code. Initial Residential Database Upload $ Waived One (1) CodeRED distance training session $ Included Additional distance training sessions may be purchased for $150.00 per hour (one hour minimum). System usage will be charged against Prepaid System Minutes at actual minutes of time connected while delivering prerecorded System calls. All calls will be billed in 6- second increments. Only connected calls (live connections, answering machine connections and fax tone connections) will result in connection charges being incurred. Database Accuracy Updates Licensor Supplied Database: "Database Accuracy Updates" ensure that the data population maintained by Licensor under this Agreement undergoes periodic accuracy checks using the Licensor's most current in -house compiled database including, but not limited to, household addresses and telephone numbers. It will be the sole responsibility of the Licensee to maintain database accuracy and request updates from the Licensor. One annual "Database Accuracy Update" will be performed by the Licensor upon request by the Licensee at no charge. Additional updates requested by Licensee will incur charges at the rate listed below after the update service is completed by Licensor. 30 per record in final updated database population. Licensee Supplied Database: A service labor fee of One Hundred Dollars ($100.00) per hour will be billed to Licensee for any data importing, manipulating, and loading any database supplied by Licensee or on Licensee's behalf to Licensor. $100 per hour for database maintenance Annual System Maintenance, including all Software Upgrades $ No Charge Licensee may be upgraded to latest version(s) of the Service as available Professional Services Upon Request: $135 /hour Licensor shall perform professional services as requested from time to time by Licensee in its sole discretion. Emergency Communications Network, LLC Page 6 of 6 CodeRED® Services Agreement Initials Licensor Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXI4WJT 6 Exhibit 2 CodeRED® Weather Warning Service Addendum This is an Addendum, effective October 7, 2015 (the "Effective Date "), to the CodeRED Services Agreement ( "Agreement ") entered into, as of the Effective Date, by and between the City of Denton (hereinafter "Licensee ") a body politic of the State of Texas located at 332 East Hickory Street, Denton, TX 76201 and Emergency Communications Network, LLC (hereinafter "Licensor "). In consideration of the promises set forth herein and outlined in the Agreement, Licensee and Licensor agree to amend the CodeRED Services Agreement in the following manner: 1. The following terms shall be added to the original CodeRED Service Agreement: CodeRED® Weather Warning Service: Licensor's CodeRED Weather Warning Service (CRWW) expands the benefits of the CodeRED service to include the automatic launching of prerecorded Weather Warning call -out projects to Licensee approved subscribers. These automated call -outs are initiated by the issuance of a Severe Weather Bulletin by the National Weather Service (NWS), with no intervention on the part of Licensee or Licensor. Call recipients are determined by matching the geographic locations associated with a database of opt -in subscribers against the geographic polygon(s) associated with Severe Weather Warnings issued by NWS. CRWW Terms of Use: Subscribers: Severe weather events can occur at any time of day or night. Accordingly, CRWW calls will automatically be launched in response to the issuance of NWS Bulletins at any time, 24 hours /day. Unlike the CodeRED service which is pre - populated with calling data for residential and business telephones, the CRWW service targets the telephone numbers of ONLY those households and business that have CHOSEN to participate through an opt -in process. Residents and businesses within the City of Denton, Texas who wish to receive the CRWW calls can add their name and geographic location to the CRWW subscriber database via the Licensee's CodeRED Residential Update Website. This site is hosted by Licensor for the purpose of allowing citizens to add their contact information to both the CodeRED database and the CRWW database via the Internet. Subscribers shall be subject to the terms and conditions of the CRWW service, which can be reviewed at: http: / /ecnetwork.com /privacy - policy /. ONLY THOSE CITIZENS WHO OPT -IN TO THE CRWW SERVICE WILL BE ELIGIBLE TO RECEIVE WEATHER WARNING CALLS. LICENSEE MUST APPROVE ALL SUBSCRIBER ENTRIES PRIOR TO THEIR BEING ACTIVATED AND ENTERED INTO THE CALLING DATABASE. All subscriber data is the sole and exclusive property of Licensor. Limits on Calling Database: Citizens are allowed to enter up to two (2) telephone contact numbers for each CRWW address. Only addresses falling within the geography covered under the CodeRED Services Agreement are eligible to receive CRWW calls. Licensee is responsible for removing subscriber addresses that fall outside of its covered municipality prior to approving records via the on -line Residential Update approval process. CodeRED Minute Bank Balance: Calls placed automatically via the CRWW Service have no effect on the minute bank balance associated with the CodeRED Service. The additional fees (described below) for the CRWW Service include all minutes used in the delivery of all warning calls made during the term of this Addendum. License: The CRWW Service is available only as an add -on service module for Licensees of the CodeRED Service. The CRWW service license will not be provided under the terms of this Addendum unless a current active Standard CodeRED Services agreement is in effect. Page 1 of 2 Initials Licensor FV Licensee DocuSign Envelope ID: B25EF482- E7A1- 40EC- B8D8- 5707946BD1C8 EXHIBIT 6 COST FOR CRWW: Licensee shall pay to Licensor forty -four thousand three hundred one dollars ($44,301) for the initial term of this Addendum, which shall coincide with the Initial Term of the Agreement, which shall be paid by Licensee in three (3) annual installments of fourteen thousand seven hundred sixty -seven dollars ($14,767). Thereafter Licensee shall pay forty- four thousand three hundred one dollars ($44,301) for each successive term of this Addendum, which shall coincide with any Renewal Term, and the full term of, the Agreement, which shall be paid by Licensee in three (3) annual installments of fourteen thousand seven hundred sixty -seven dollars ($14,767). Payment terms shall be identical to the terms contained in the original Agreement for the CodeRED Service. Pricing for CRWW is separate and independent from CodeRED Service Agreement pricing, and the CRWW service can be removed from the CodeRED Service by Licensee by providing 30 days written notice prior to the end of the then - current initial term or renewal term of the Agreement. Licensee will be notified of any price change for CRWW a minimum of 90 days in advance of the renewal date. TERM: The term of the CRWW Addendum shall commence as of the Effective Date and shall be for so long as Licensee maintains an active CodeRED Services Agreement and has paid the appropriate fees listed above. Upon termination of the CodeRED Services Agreement, access to the CRWW system will terminate and Licensor shall terminate all individual subscriber accounts. 2. This Addendum shall not modify any terms and conditions of the Agreement, which shall remain in force and effect for the term of the Agreement. CITY OF DENTON, TEXAS EMERGENCY COMMUNICATIONS Licensee NETWORK, LLC Licensor By: Name: �"j i /t�laCdw�b By: David DiGiacomo Name: President /CEO Title: Title: Date: Page 2 of 2 Date: 9/8/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -854, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services, Economic Development CM/ ACM: Jon Fortune Date: Sept. 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, granting Oaktopia, pursuant to Section 17 -20 of the Code of Ordinances of the City of Denton, Texas, an exception to the limitations imposed by that section with respect to hours of operation of an amplified loudspeaker system; and setting an effective date. BACKGROUND The Oaktopia Festival will feature live music by more than twenty national and approximately eighty local bands. A variety of vendors and artists, will be present at Williams Trade Square, city -owned property, located east of the Wells Fargo Bank building on Hickory Street. As a special feature this year, Jason Lee will present his documentary on local rock band Midlake prior to an outdoor movie showing Friday night at the Travelstead location, Denton Radio will sponsor family - friendly live music broadcasts from the Denton County Courthouse Lawn, and bands will be playing live music on the Travelstead and Williams Trade Square stages from 2 p.m. to 11 p.m. on Saturday, Sept. 26 and from 1:30 p.m. to 10 p.m. on Sunday, Sept. 27. The Oaktopia Festival creates Hotel and Occupancy Sales Tax by bringing more than twenty nationally recognized musical artists to Denton who stay in local hotels; attracts more than 5,000 people to Downtown, which increases alcohol and food sales; and generates further notoriety to Denton as a live music festival venue and destination. In addition sales tax, Oaktopia Festival pays $630 in fees for event permits and rental of Williams Trade Square parking lot, $6,000 to off -duty City of Denton police officers. Event organizers expect an attendance of approximately 5,000 paid attendees over the two days of the event. Festival organizers have made application to the City Council for an exception to the provision of Section 17- 20 of the Code restricting the operation of amplified loudspeakers in connection with the Oaktopia annual event held on the Denton County Historic Courthouse Lawn at 110 W. Hickory St., Travelstead at 209 - 211 E. Hickory St., and Williams Trade Square at 101 E. Hickory St., and in connection with said request, has requested the exception to be granted for said annual event at the Denton County Historic Courthouse lawn location, Friday, September 25, 2015 not to exceed 75 d.b. from 5:00 p.m. until 10:00 p.m., the Travelstead location, Friday, September 25, 2015 not to exceed 75 d.b. from 8:00 p.m. until midnight, and all three locations, Saturday, September 26, 2015 not to exceed 75 d.b. from 2:00 p.m. until 11:30 p.m., all three locations, Sunday, September 27, 2015 not to exceed 75 d.b. from 1:30 p.m. until 10:30 p.m. The Aide to the Commissioners Court has approved the request to use the Denton County Historic Courthouse City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -854, Version: 1 Lawn by the Oaktopia Festival during the days and times noted above. RECOMMENDATION Staff recommends approval of the request for the exception to the limitations imposed by section 17 -20 of the code of ordinance of the city of Denton, Texas. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council approved the request for an exception to the noise ordinance and to increase the decibels from 70 to 75 for the 2013 and 2014 annual Oaktopia Festivals. EXHIBITS Exhibit 1 - Oaktopia Noise Exception Request Exhibit 2 - Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Christina Davis Economic Development Specialist City of Denton Page 2 of 2 Printed on 9/10/2015 Noise Exception Request Monocle LLC will be holding Oaktopia Festival on September 25th, 26th and 27th, 2015. The hours of operations are as follows: 25th: 5:00 P.M. - 10:00 P.M. Courthouse lawn stage only 25th: 8:00 P.M. - 12:00 P.M. Travelstead Stage (movie showing) 26th: 2:00 P.M. - 11:30 P.M. Courthouse lawn stage, Williams Trade Square, Travelstead stage 27th: 1:30 P.M. - 10:30 P.M. Courthouse lawn stage, Williams Trade Square, Travelstead stage Oaktopia is a music and art festival showcasing local and national talent. If approved, it will take place in Williams Trade Square and the Travelstead property on Hickory Street and the Courthouse lawn. We are requesting a noise exception of 75 d.b. for the event. We will have local vendors, local charities, and activities surrounding the outdoor stages. Thank you for your consideration. Preston Ehrsam Oaktopia Co- Founder 940 - 231 -8839 preston@monocleinc.com For more information on the festival visit: www.oaktopiafest.com or www.facebook.com /oakto iafest ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, GRANTING OAKTOPIA, PURSUANT TO SECTION 17 -20 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS, AN EXCEPTION TO THE LIMITATIONS IMPOSED BY THAT SECTION WITH RESPECT TO HOURS OF OPERATION OF AN AMPLIFIED LOUDSPEAKER SYSTEM; AND SETTING AN EFFECTIVE DATE. WHEREAS, pursuant to § 17 -20 of the Code of Ordinances of the City of Denton, Texas, Oaktopia has made application to the City Council for an exception to the provision of that same section restricting the operation of amplified loudspeakers in connection with the Oaktopia annual event held on the Denton County Historic Courthouse Lawn at 110 W. Hickory St., Travelstead at 209 — 211 E. Hickory St., and Williams Trade Square at 101 E. Hickory St., and in connection with said request, has requested the exception to be granted for said annual event at the Denton County Historic Courthouse lawn location, Friday, September 25, 2015 not to exceed 75 d.b. from 5:00 p.m. until 10:00 p.m., the Travelstead location, Friday, September 25, 2015 not to exceed 75 d.b. from 8:00 p.m. until midnight, and all three locations, Saturday, September 26, 2015 not to exceed 75 d.b. from 2:00 p.m. until 11:30 p.m., all three locations, Sunday, September 27, 2015 not to exceed 75 d.b. from 1:30 p.m. until 10:30 p.m.; and WHEREAS, upon prior application and approval by the City Council of the City of Denton, Texas, Oaktopia has consistently demonstrated over the past two years an ability to responsibly operate amplified loudspeakers in connection with Oaktopia annual event held at the Williams Trade Square and vicinity adjacent known as E. Hickory St, at times past the hours defined in § 17- 20 of the Code of Ordinances of the City of Denton, Texas, within the public interest and without materially disturbing persons of ordinary sensibilities in the immediate vicinity thereof; and WHEREAS, based upon this past history, the City Council of the City of Denton, Texas finds that granting an exception for this annual event, subject to the restrictions contained herein, would serve the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Pursuant to § 17 -20 of the Code of Ordinances, Oaktopia is hereby granted an exception from said section's 10:00 p.m limitation from Monday through Saturday and prohibition on Sunday, upon the operation of amplified loudspeakers, subject to the conditions listed below: 1. This exception is granted o in connection with the operation of Oaktopia's annual event held at Denton County Historic Courthouse Lawn at 110 W. Hickory St., Travelstead at 209 — 211 E. Hickory St., and Williams Trade Square at 101 E. Hickory St., and in connection with said request, has requested the exception to be granted for said annual event at the Denton County Historic Courthouse lawn location, Friday, September 25, 2015 not to exceed 75 d.b. from 5:00 p.m. until 10:00 p.m., the Travelstead location, Friday, September 25, 2015 not to exceed 75 d.b. from 8:00 p.m. until midnight, and all three locations, Saturday, September 26, 2015 not to exceed 75 d.b. from 2:00 p.m. until 11:30 p.m., all three locations, Sunday, September 27, 2015 not to exceed 75 d.b. from 1:30 p.m. until 10:30 p.m. 2. The Oaktopia agrees to take full responsibility for ensuring that the conditions of this exception are met, and to take all reasonable measures necessary to avoid disturbing persons of ordinary sensibilities in the immediate vicinity of the event. 3. The Oaktopia agrees to cease using amplified loudspeakers at the Denton County Historic Courthouse lawn location, Friday, September 25, at 10:00 p.m., the Travelstead location, Friday, September 25, 2015 at midnight, and all three locations, Saturday, September 26, 2015 at 11:30 p.m., all three locations, Sunday, September 27, 2015 at 10:30 p.m. 4. Under no circumstances shall the annual event employ the use of amplified loudspeakers at the Historic Courthouse lawn location, Friday, September 25, past 10:00 p.m., the Travelstead location, Friday, September 25, 2015 past midnight, and all three locations, Saturday, September 26, 2015 past 11:30 p.m., all three locations, Sunday, September 27, 2015 past 10:30 p.m. 5. Under no circumstances shall the annual event employ the use of amplified loudspeakers that exceed 75 d.b. when measured from the perimeter of the source as measured by an approved measuring instrument. 6. This ordinance confers no personal or property rights, and may be amended, modified, superseded or revoked in whole or in part at the will of the City Council of the City of Denton, Texas, without any advance warning, hearing or compensation, for any reason at all, or for no reason. 7. This ordinance shall be strictly construed as an exception granted pursuant to § 17 -20 of the Code of Ordinances of the City of Denton, Texas. The City of Denton, Texas expressly reserves unto itself and all other persons any and all legal remedies, civil or criminal, relating to excessive noise in connection with this annual event, and hereby disclaims any promissory or equitable estoppel which might in any way impede the pursuit of such remedies by any person. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval, and expire three years hence, unless sooner repealed, modified or rescinded. Page 2 of 3 s:NlcgaIV)ur documents\ordinances\ I 51,exemption from noise or(�lini itwc,,,oaktopia ,d( ,cx ATTEST: JENNIFTR WAUFERS, CITY SECRETARY m APPROVED ASTO LEGAL F'ORM: ANITA BURGESS, CITY ATTORNEY BY: 00�4 41 /000 Page 3 of City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -856, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services, Economic Development CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider approval of a resolution allowing DI2- dentonl, LLC, DBA Lone Star Attitude Burgers and Oak Street Draft House LLC, to be allowed to sell alcoholic beverages at Oaktopia, September 25 - 27, 2015, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. BACKGROUND The Oaktopia Festival is an outdoor live music, arts, and entertainment festival that will be held on City property in the Williams Trade Square and the 100 - 200 block of E. Hickory St. in addition to the Denton County Historic Courthouse Lawn and the private property known as Travelstead located at 209 - 211 E. Hickory. Preston Ehrsam and Matt Battaglia, festival organizers, submitted a request (Exhibit 2) to sell alcoholic beverages during the festival that will be provided by Lone Star Attitude Burgers and Oak Street Draft House. The Williams Trade Square is City owned property bordered by E. Hickory and Mulberry Streets; east of Wells Fargo Bank; and west of 210 E. Hickory. The E. Hickory St Project has recently completed construction and improvements which included amenities to accommodate festivals - Oaktopia will be the first event to take advantage of the completed project. The Oaktopia Festival creates Hotel and Occupancy Sales Tax by bringing more than twenty nationally recognized musical artists to Denton who stay in local hotels; attracts more than 5,000 people to Downtown, which increases alcohol and food sales; and generates further notoriety to Denton as a live music festival venue and destination. In addition to sales tax, Oaktopia Festival pays $630 for City event permits fees, the rental of Williams Trade Square parking lot, and $6,000 to off -duty City of Denton police officers. Event organizers expect a total attendance of approximately 5,000 paid attendees during the two day event. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -856, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Oaktopia was allowed the sale and consumption of alcohol on City property at this location, and was approved at the October 1, 2013 and September 16, 2014 City Council meetings. EXHIBITS Exhibit 1 - Letter of Request Exhibit 2 - Resolution Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Christina Davis Economic Development Specialist City of Denton Page 2 of 2 Printed on 9/10/2015 Monocle Inc. 114 Industrial St. Denton, TX 76201 ;V M O N O C L E I N C This is a letter requesting permission to sell alcohol on city property for the event, Oaktopia, which is to take place on September 26th and 27th. 2015. The alcohol will be sold by a 3rd party vendor and will be required to produce all necessary permits to be able to do so. The area where the alcohol will be sold will all be fenced in order to be able to sell the alcohol by TABC requirements. LSA and Oak St Draft House, the alcohol licensees, are working directly with our event to ensure everything is held to event standards. The event will have ample amounts of security presence to help ensure that no underage participation will be taking place and to prevent any sort of social misconduct at the event. We will have plenty of trash receptacles and a large volunteer team to help keep the areas free of litter and to help clean up after the event. Thanks for your consideration, Oaktopia Management Preston Ehrsam 940 - 231 -8839 Matt Battaglia 940 - 367 -4304 sAlegakour docurnentsVesolutions\1 5\rcsolution alcohol sales oaktopia Isa - osdh.docx RESOLUTION NO. A RESOLUTION ALLOWING D12-DENTONI, LLC, DBA LONE STAR ATTITUDE BURGERS AND OAK STREET DRAFT HOUSE LLC, TO BE ALLOWED TO SELL ALCOHOLIC BEVERAGES AT OAKTOPIA, SEPTEMBER 25 — 27, 2015, UPON CERTAIN CONDITIONS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT IN CONFORMITY WITH THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council finds that it is in the public interest to select a vendor of alcoholic beverages at Oaktopia; and WHEREAS, D12-DENTON1, LLC, DBA LONE STAR ATTITUDE BURGERS AND OAK STREET DRAFT HOUSE LLC has requested that they being a participant, be allowed to sell alcoholic beverages at this year's OAKTOPIA, SEPTEMBER 25 — 27, 2015; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. D12-DEN-1-ON I, LLC, DBA LONE STAR ATTITUDE BURGERS AND OAK STREET DRAFT HOUSE LLC shall be a participant allowed to sell alcoholic beverages at OAKTOPIA, SEPTEMBER 25 — 27, 2015, in the WILLIAMS TRADE SQUARE AND 100 & 200 BLOCK OF E. HICKORY ST upon the following conditions: I They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor/Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at Oaktopia. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. ... . ....... s:\Iegal\our documentsVesolutionsA 5\resolution alcohol sales oaktopia Isa - osdh.doex PASSED AND APPROVED this the day of 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CHRIS WATTS, MAYOR Page 2 of 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -866, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Fire and Emergency Medical Services CM/ ACM: John Cabrales, Jr. Date: September 15, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas, ( "City "), as buyer and WILLIAMS RENTALS, LLC, (the "Owner "), as seller, 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; (the "Property Interests ") for the purchase price of Two Hundred Ninety Nine Thousand Five Hundred Dollars and No Cents ($299,500.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefor; (ii) providing a savings clause; and (III) providing an effective date. (Fire Station No. 4 Rebuild Project) BACKGROUND The City Council considered and approved an initial offer to purchase the captioned land rights on August 18, 2015, for the purchase price of $233,500.00. Offer to purchase was made to owner thereafter and Owner has countered with the captioned purchase amount as settlement of the matter. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. 2. Not approve the proposed Ordinance. 3. Table for future consideration. 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, City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -866, Version: 1 April 21, 2015 - Closed Session, briefed City Council August 18, 2014 - City Council (initial offer to purchase Ordinance No. 2015 -244) 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 9/10/2015 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 ORDINANCE NO. 2015- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE AGREEMENT, BY AND BETWEEN THE CITY OF DENTON, TEXAS, ( "CITY "), AS BUYER AND WILLIAMS RENTALS, LLC, (THE "OWNER "), AS SELLER, 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; (THE "PROPERTY INTERESTS ") FOR THE PURCHASE PRICE OF TWO HUNDRED NINETY NINE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($299,500.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED TO THE ORDINANCE AND MADE A PART HEREOF AS EXHIBIT "A ", (I) AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; (II) PROVIDING A SAVINGS CLAUSE; AND (III) PROVIDING AN EFFECTIVE DATE. (FIRE STATION NO. 4 REBUILD PROJECT) WHEREAS, the City of Denton ( "City ") made a bona fide offer to the Owner to purchase the Property Interests; WHEREAS, Owner has made a counteroffer to the Initial Offer of City; WHEREAS, City is amenable to the counteroffer, and finds that it is in the best interest to agree to same; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Purchase Agreement, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $299,500.00 and other consideration, plus costs and expenses, all as prescribed in the Purchase Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Purchase Agreement; and (b) to make expenditures in accordance with the terms of the Purchase Agreement. SECTION 2. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: f"00,01 - - � v - Exhibit A 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 1 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. N 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 "T�v1: I hi ��ee u. �} nd ,, Np /Cents (� he monetary compensation prescribed in this Section �herein rred to as the "Total onetary 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 th 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 By. ..� GEO�GE 6. CAMPBELL, CITY MANAGER Date: , 2015 ATTEST: mm WALTERS, CITY SECRETARY 0411 R APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: <— Date: i t , 2015 OWNER: 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 0 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 Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. 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 IL• 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 -867, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider approval of a resolution by the City Council of the City of Denton, Texas consenting to the withdrawal of the North Texas Higher Education Authority (NTHEA) from acting for and on its behalf and rescinding its request that the authority act for and on its behalf; and providing an effective date. BACKGROUND The North Texas Higher Education Authority (NTHEA) was established as a non - profit corporation to further educational opportunities for students by providing funds for the acquisition of student loans. With state legislation, the NTHEA was founded in 1978 with the support and governmental sponsorship of both the cities of Denton and Arlington. Over the past 37 years, the NTHEA has issued bonds to assist with financing low -cost student loans for thousands of students. While the city of Denton is a governmental sponsor, Denton in no way shares in any financial obligation related to these bonds or the organization. Due to the passage of the Affordable Care Act in 2010, the NTHEA was effectively eliminated from their previous role in providing access to federal education loans. As a result, the organization requested a change in their governing structure in order to more efficiently conduct their operations. With the City of Denton's support, Representative Crownover filed HB 3245 to allow the NTHEA to be sponsored by only one governmental entity. Since their corporate offices are located in Arlington, they recommended that Arlington be the sole sponsoring entity. HB 3245 was passed by the legislature and signed by the Governor in June. As a result of this legislative action, the NTHEA has requested that the City of Denton formally rescind its request to be represented by the authority. To do so, staff has prepared the attached resolution to be adopted by the City Council. RECOMMENDATION: Staff recommends approval of the attached resolution to rescind the City of Denton's request to be represented by the NTHEA. EXHIBITS City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -867, Version: 1 Exhibit 1 - Resolution Respectfully submitted: Bryan Langley Assistant City Manager City of Denton Page 2 of 2 Printed on 9/10/2015 RESOLUTION NO. A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF DENTON CONSENTING TO THE WITHDRAWAL OF NORTH TEXAS HIGHER EDUCATION AUTHORITY, INC. FROM ACTING FOR AND ON BEHALF OF THE CITY AND RESCINDING THE CITY'S REQUEST THAT THE AUTHORITY ACT FOR AND BEHALF OF THE CITY WHEREAS, North Texas Higher Education Authority, Inc. (the "Authority ") was established as a non - profit corporation pursuant to Section 53B.47(e) of the Texas Education Code, for the purpose of furthering educational opportunities of students by providing funds to purchase or to make guaranteed student loans; and WHEREAS, by Resolution of the City Council of the City of Denton, Texas dated July 5, 1978, the City of Denton, Texas ( "City of Denton ") agreed to participate in the establishment of the Authority jointly with the City of Arlington, Texas ( "Arlington "); and WHEREAS, for many years, the Authority has furthered educational opportunities of area students by providing funds to eligible lenders which made student loans to area residents and students; and WHEREAS, due to the termination of the Federal Family Education Loan Program, the Authority is no longer able to purchase guaranteed student loans and currently has no activities in the City of Denton and no financing plans; and WHEREAS, the Authority is seeking to simplify its organizational structure by making Arlington its sole sponsoring entity; and WHEREAS, the Authority has asked the City of Denton to (1) consent to the Authority's withdrawal from acting for and on its behalf of the City of Denton; and (2) rescind the City of Denton's earlier request that the Authority act for and on behalf of the City of Denton; and WHEREAS, the City of Denton is willing to do so; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS RESOLVES: SECTION 1. The City Council of the City of Denton, Texas, consents to the withdrawal of North Texas Higher Education Authority, Inc. from acting for and on behalf of the City of Denton in the exercise of the powers enumerated under Section 5313.47 of the Texas Education Code, SECTION 2. The City Council of the City of Denton, Texas, rescinds its earlier request that North Texas Higher Education Authority, Inc. act for and on behalf of the City of Denton. 50900788.1 SECTION 3. The City Council of the City of Denton, Texas, confirms that the Authority intends to withdraw from acting on behalf of the City of Denton pursuant to Section 5313.48 of the Texas Education Code, and following the Authority's withdrawal, the City of Denton will no longer be entitled to participate in the appointment or removal of a member of the board of directors of the Authority or authorize or be required to participate in the approval of the issuance of revenue bonds or other borrowings by the Authority, and members of the board of directors of the Authority who were appointed by the City of Denton will no longer be considered qualified as directors of the Authority. SECTION 4. It is officially found and determined that the meeting at which this resolution is passed is open to the public, as required by law, and that public notice of the time, place and purpose of said meeting was posted, as required by law. SECTION 5. This resolution 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 FORM: ANITA BURGESS, CITY ATTORNEY BY: 50900788.1 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -871, Version: 1 Agenda Information Sheet DEPARTMENT: Electric CM/ ACM: Howard Martin, 349 -8232 DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance amending the schedule of electric rates contained in Ordinance No. 2014- 285 for electric service; amending the provisions of the Residential Service Rate Schedule (Schedule RES); amending the provisions of the Residential Renewable Energy Service Rider (Schedule RG); amending the provisions of the Residential Prepaid Service Schedule (Schedule RPP); adding the provisions of the Residential Time Of Use Schedule (Schedule RTOU); amending the provisions of the General Service Small Schedule (Schedule GSS); amending the provisions of the General Service Medium Schedule (Schedule GSM); amending the provisions of the General Service Large Schedule (Schedule GSL); amending the provisions of the General Time of Use Schedule (Schedule TGS); amending the provisions of the Local Government Small Schedule (Schedule G2); amending the provisions of the Local Government Schedule (Schedule G1); amending the provisions of the Weekend Service Schedule (Schedule WK); amending the provisions of the Athletic Field Schedule (Schedule AF); amending the provisions of the Street Lighting Schedule (Schedule LS); amending the provisions of the Traffic Lighting Schedule (Schedule LT); amending the provisions of the Unmetered School Zone /Crossing Flashers Schedule (Schedule UFL); amending the provisions of the Unmetered Traffic Lights Schedule (Schedule ULT); amending the provisions of the Unmetered Security Camera Schedule (Schedule USC); adding the provisions of the Unmetered Wi -Fi Devices Schedule (Schedule UWF); amending the provisions of the Other Lighting Schedule (Schedule LO); amending the provisions of the Security Lighting Schedule (Schedule DD); amending the provisions of the Decorative Downtown Lighting Schedule (Schedule DDL); amending the provisions of the Non Standard Street Lighting Schedule (Schedule DSL); amending the provisions of the Temporary Service Schedule (Schedule T1); amending the provisions of the GreenSense Energy Efficiency Rebate Program and renaming it the "GreenSense Incentive Program" (Schedule GRP); amending the provisions of the Energy Cost Adjustment Schedule (Schedule ECA); amending the provisions of the Renewable Cost Adjustment (Schedule RCA); amending the provisions of the Transmission Cost Recovery Factor Schedule (Schedule TCRF); amending the provisions of the Dark Fiber Schedule (Schedule DFR); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND The proposed electric rate ordinance included in this agenda item is designed to recover the cost of service for the Electric utility and provide a positive or break -even net income. A residential customer using 1,000 kilowatt hours would incur the following average monthly charge. City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -871, Version: 1 Current $111.21 Proposed Increase $114.29 $3.08 The attached Electric Rate Ordinance includes adding the provisions of- The Residential Time Of Use (RTOU); • The Unmetered Wi -Fi Devices (UWF). The attached Electric Rate Ordinance includes amending the provisions of- Residential Service Rate (Schedule RES); • Residential Renewable Energy Service Rider (Schedule RG); • Residential Prepaid Service Schedule (Schedule RPP); General Service Small Schedule (Schedule GSS); General Service Medium Schedule (Schedule GSM); General Service Large Schedule (Schedule GSL); General Time Of Use Schedule (Schedule TGS); • Local Government Small Schedule (Schedule G2); Local Government Schedule (Schedule G1); Weekend Service Schedule (Schedule WK); • Athletic Field Schedule (Schedule AF); Street Lighting Schedule (Schedule LS); • Traffic Lighting Schedule (Schedule LT); Unmetered School Zone /Crossing Flashers Schedule (Schedule UFL); Unmetered Traffic Lights Schedule (Schedule ULT); Unmetered Security Camera Schedule (Schedule USC); Other Lighting Schedule (Schedule LO); Security Lighting Schedule (Schedule DD); • Decorative Downtown Lighting Schedule (Schedule DDL); • Non Standard Street Lighting Schedule (Schedule DSL); • Temporary Service Schedule (Schedule T1); GreenSense Energy Efficiency Rebate Program (Schedule GRP); • Energy Cost Adjustment Schedule (Schedule ECA); • Renewable Cost Adjustment Schedule (Schedule RCA); • Transmission Cost Recovery Factor (Schedule TCRF); • Dark Fiber Schedule (Schedule DFR). FISCAL INFORMATION The rates and charges included in the Electric rate ordinance provide the revenues necessary to recover the cost of service to customers. The proposed Electric rates represent an overall base rate increase of 4.5 %. This increase joined with a $0.0029 /kWh decrease in the Energy Cost Adjustment (ECA) results in a net 0.16% increase (18¢) on the average charge for a residential customer using 1000 kWh monthly. City of Denton Page 2 of 3 Printed on 9/10/2015 File #: ID 15 -871, Version: 1 RECOMMENDATION Staff recommends approval of the proposed ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Public Utilities Board recommended approval on July 27, 2015. (4 -0) EXHIBITS 1. Fiscal Year Rate Comparison 2. Proposed FY2015 -2016 Electric Rate Ordinance Respectfully submitted: Phil General Manager Denton Municipal Electric Prepared by: William A. Bunselmeyer Manager, Energy Services & Business Development Denton Municipal Electric Respectfully submitted: Williams City of Denton Page 3 of 3 Printed on 9/10/2015 EXHIBIT I CITY OF DENTON ELECTRIC UTILITY FISCAL YEAR RATE COMPARISON Rate Schedule 2016 Rates 2015 Rates Residential - RES 8.25 8.25 Facility Charge $ - Single Phase 8.25 8.25 Facility Charge $ - Three Phase 16.50 16.50 Energy Charge /cents per kWh: 6.51 6.18 First 600 kWh (Winter) 6.51 6.18 All additional kWh (Winter) 4.33 4.11 All kWh (Summer) 6.51 6.18 Energy Cost Adjustment (ECA) Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Residental Renewable - RG Facility Charge $ - Single Phase 8.25 8.25 Facility Charge $ - Three Phase 16.50 16.50 Energy Charge /cents per kWh: First 600 kWh (Winter) 6.51 6.18 All additional kWh (Winter) 4.33 4.11 All kWh (Summer) 6.51 6.18 Renewable Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Residential Prepaid - RPP Facility Charge $ - Single Phase 15.25 15.25 Facility Charge $ - Three Phase 22.50 22.50 Energy Charge /cents per kWh: First 600 kWh (Winter) 6.51 6.18 All additional kWh (Winter) 4.33 4.11 All kWh (Summer) 6.51 6.18 Renewable Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Residential Time -Of -Use - RTOU Facility Charge $ - Single Phase 8.25 N/A Facility Charge $ - Three Phase 16.50 N/A Energy Charge /cents per kWh: First 600 kWh (Winter) 6.51 N/A All additional kWh (Winter) 4.33 N/A All kWh (Summer) 6.51 N/A Energy Cost Adjustment (ECA) Variable N/A Transmission Cost Recovery Factor (TCRF) Variable N/A Commercial Renewable Energy Service Rider - CGR Renewable Cost Adjustment per kW Variable Variable (Sold in 1,000 kW Blocks) General Service Small - GSS Facility Charge $ - Single Phase 15.80 15.80 Facility Charge $ - Three Phase 21.10 21.10 Energy Charge /cents per kWh ( First 2,500) 8.11 7.67 Energy Charge /cents per kWh (All Aditional kWh) 4.25 4.02 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Finance /Rates /88e6de0e- efOb -4d bc- bc3a- 2385085f7d 7c CITY OF DENTON ELECTRIC UTILITY FISCAL YEAR RATE COMPARISON Rate Schedule 2016 Rates 2015 Rates General Service Medium - GSM 15.80 15.80 Facility Charge $ - Single Phase 15.80 15.80 Facility Charge $ - Three Phase 21.10 21.10 Demand Charge /$ per kW 4.55 4.34 Energy Charge /cents per kWh: Variable Variable Secondary Service (GMI) Variable Variable First 6,000 kWh 4.98 4.75 Additional kWh 4.11 3.92 For Primary Service (GM2) First 6,000 kWh 4.88 4.65 Additional kWh 4.01 3.82 For Primary Service & Ownership (GM3) First 6,000 kWh 4.68 4.45 Additional kWh 3.81 3.62 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable General Service Large - GSL Facility Charge $ 65.55 65.55 Demand Charge /$ per kVA 10.25 9.75 Energy Charge /cents per kWh: Secondary Service (GL1) First 200,000 kWh 2.33 2.22 Additional kWh 1.33 1.27 For Primary Service (GL2) First 200,000 kWh 2.23 2.12 Additional kWh 1.23 1.17 For Primary Service & Ownership (GL3) First 200,000 kWh 2.03 1.92 Additional kWh 1.03 0.97 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable General Service Time of Use - TGS Facility Charge $ 76.45 76.45 Demand Charge /$ per kVA On -Peak 13.06 12.42 Demand Charge /$ per kVA Off -Peak 2.58 2.45 Energy Charge /cents per kWh: For Secondary Service (TGI) 0.78 0.74 For Primary Service (TG2) 0.68 0.64 For Primary Service & Ownership (TG3) 0.48 0.44 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Local Government - GI Facility Charge $ - Single Phase 15.80 15.80 Facility Charge $ - Three Phase 21.10 21.10 Demand Charge /$ per kW 7.78 7.36 Energy Charge /cents per kWh 3.52 3.38 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Finance /Rates /88e6de0e- efOb -4d bc- bc3a- 2385085f7d 7c CITY OF DENTON ELECTRIC UTILITY FISCAL YEAR RATE COMPARISON Rate Schedule 2016 Rates 2015 Rates Local Government Small - G2 Facility Charge $ - Single Phase 15.80 15.80 Facility Charge $ - Three Phase 21.10 21.10 Energy Charge /cents per kWh 7.36 6.99 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Weekend Rate - WK Facility Charge $ - Single Phase 20.86 20.86 Facility Charge $ - Three Phase 26.08 26.08 Demand Charge /$ per kW (First 20 kW Not Billed) 7.31 7.10 Energy Charge /cents per kWh: First 2,500 kWh 8.11 7.67 2,501 to 6,000 kWh 4.25 4.02 Additional kWh 3.13 2.96 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Athletic Field - AT Facility Charge $ - Single Phase 21.07 21.07 Facility Charge $ - Three Phase 31.60 31.60 Energy Charge /cents per kWh: October through May 4.53 4.31 June through September Off -Peak 4.53 4.31 June through September On -Peak 9.05 8.61 Demand Charge /$ per kW: October through May 1.33 1.27 June through September Off -Peak 1.33 1.27 June through September On -Peak 5.61 5.34 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Street Lighting - LS Sodium: LSA 100 W Facility Charges 5.53 5.53 LSB 250 W Facility Charges 7.84 7.84 LSC 400 W Facility Charges 9.87 9.87 LED: LSD 100 W Facility Charges 5.28 N/A LSE 250 W Facility Charges 7.48 N/A LSD 400 W Facility Charges 9.42 N/A ECA Charge = Monthly Bulb Wattage Factor x ECA Variable Variable Monthly Bulb Wattage Factors: Sodium: 100 W 48 kWh 48 kWh 250 W 105 kWh 105 kWh 400 W 159 kWh 159 kWh LED: 100 W 25 kWh N/A 250 W 96 kWh N/A 400 W 148 kWh N/A Traffic Lighting - LT Energy Charge /cents per kWh 6.32 6.03 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Finance /Rates /88e6de0e- efOb -4d bc- bc3a- 2385085f7d 7c CITY OF DENTON ELECTRIC UTILITY FISCAL YEAR RATE COMPARISON Rate Schedule 2016 Rates 2015 Rates Unmetered School Zone /Crossing Flashers - UFL 16.96 N/A Energy Charge /cents per kWh 6.32 6.03 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Unmetered Traffic Lighting - ULT Energy Charge /cents per kWh 6.32 6.03 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Unmetered Security Camera - USC Facility Charge $ 16.96 16.96 Energy Charge /cents per kWh 6.32 6.03 Energy Cost Adjustment Variable Variable Transmission Cost Recovery Factor (TCRF) Variable Variable Unmetered Wi -Fi Devices - UWF Facility Charge $ 16.96 N/A Energy Charge /cents per kWh 6.32 N/A Energy Cost Adjustment Variable N/A Transmission Cost Recovery Factor (TCRF) Variable N/A Other Lighting - LO LOA (unmetered lighting) Energy Charge /cents per kWh 6.32 6.03 where Energy Charge = kWh rate x Bulb Wattage/ 1000 x 333 Ins ECA Charge = Current ECA x Bulb Wattage /1000 *333 Ins LOB (metered lighting) Energy Charge /cents per kWh 6.32 6.03 Energy Cost Adjustment Variable Variable Security Lighting - DD Sodium: DSA 100 W Facility Charges $ 9.15 8.74 DSB 250 W Facility Charges $ 12.10 11.55 DSC 400 W Facility Charges $ 14.58 13.92 DHA 250W Metal Halide Facility Charges $ 14.23 13.59 DHB 400W Metal Halide Facility Charges $ 16.96 16.19 ECA Charge = Current ECA x Monthly Bulb Wattage Factor Monthly Bulb Wattage Factors: 100 W 48 kWh 48 kWh 250 W 105 kWh 105 kWh 400 W 159 kWh 159 kWh Downtown Decorative Lighting - DL Facility Charge $ 4.55 4.34 Energy Charge = Current ECA x Monthly Bulb Wattage Factor x 415 kWh per Customer. Finance /Rates /88e6de0e- efOb -4d bc- bc3a- 2385085f7d 7c CITY OF DENTON ELECTRIC UTILITY FISCAL YEAR RATE COMPARISON Rate Schedule 2016 Rates 2015 Rates Non - Standard Street Lighting 105 kWh 105 kWh Facility Charge $ 8.74 8.74 Energy Charge /cents per kWh: Actual Costs Actual Costs DLSA 100 W Sodium Vapor 6.32 6.03 DLSB 250 W Sodium Vapor 6.32 6.03 DLSC 400 W Sodium Vapor 6.32 6.03 DLHA 250 W Metal Halide 6.32 6.03 DLHB 400 W Metal Halide 6.32 6.03 ECA Charge = Current ECA x Monthly Bulb Wattage Factor 7.70 Energy Cost Adjustment Monthly Bulb Wattage Factors 100 W 48 kWh 48 kWh 250 W 105 kWh 105 kWh 400 W 159 kWh 159 kWh Labor /Equipment $ per Hour - Regular Time Actual Costs Actual Costs Labor /Equipment $ per Hour - Overtime Actual Costs Actual Costs Administrative Fee 10% of Total Costs Y. of Total Costs Temporary Service - TI Facility Charge $ - Single Phase 15.80 15.80 Facility Charge $ - Three Phase 21.10 21.10 Energy Charge /cents per kWh 8.12 7.70 Energy Cost Adjustment Variable Variable Labor /Equipment $ per Hour - Regular Time Actual Costs Actual Costs Labor /Equipment $ per Hour - Overtime Actual Costs Actual Costs Administrative Fee 10% of Total Costs Y. of Total Costs Economic Growth Rider - EGR Reduction to Monthly Load Demand: Year 1 50% 50% Year 2 40% 40% Year 3 30% 30% Year 4 20% 20% Year 5 10% 10% Independent Wholesale Generator Facility Charge 65.55 65.55 Demand Charge /$ per kW 2.06 2.06 Line Loss Charge ECA Rate ECA Rate Stand -By Service GSL Rate GSL Rate Service to Customer Structures /Facilities Actual Costs Actual Costs Finance /Rates /88e6de0e- efOb -4d bc- bc3a- 2385085f7d 7c EXHIBIT 2 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE SCHEDULE OF RATES CONTAINED IN ORDINANCE NO. 2014 -285 FOR ELECTRIC SERVICE; AMENDING THE PROVISIONS OF THE RESIDENTIAL SERVICE RATE SCHEDULE (SCHEDULE RES); AMENDING THE PROVISIONS OF THE RESIDENTIAL RENEWABLE ENERGY SERVICE RIDER (SCHEDULE RG); AMENDING THE PROVISIONS OF THE RESIDENTIAL PREPAID SERVICE SCHEDULE (SCHEDULE RPP); ADDING THE PROVISIONS OF THE RESIDENTIAL TIME OF USE SCHEDULE (SCHEDULE RTOU); AMENDING THE PROVISIONS OF THE GENERAL SERVICE SMALL SCHEDULE (SCHEDULE GSS); AMENDING THE PROVISIONS OF THE GENERAL SERVICE MEDIUM SCHEDULE (SCHEDULE GSM); AMENDING THE PROVISIONS OF THE GENERAL SERVICE LARGE SCHEDULE (SCHEDULE GSL); AMENDING THE PROVISIONS OF THE GENERAL TIME OF USE SCHEDULE (SCHEDULE TGS); AMENDING THE PROVISIONS OF THE LOCAL GOVERNMENT SMALL SCHEDULE (SCHEDULE G2); AMENDING THE PROVISIONS OF THE LOCAL GOVERNMENT SCHEDULE (SCHEDULE GI); AMENDING THE PROVISIONS OF THE WEEKEND SERVICE SCHEDULE (SCHEDULE WK); AMENDING THE PROVISIONS OF THE ATHLETIC FIELD SCHEDULE (SCHEDULE AF); AMENDING THE PROVISIONS OF THE STREET LIGHTING SCHEDULE (SCHEDULE LS); AMENDING THE PROVISIONS OF THE TRAFFIC LIGHTING SCHEDULE (SCHEDULE LT); AMENDING THE PROVISIONS OF THE UNMETERED SCHOOL ZONE /CROSSING FLASHERS SCHEDULE (SCHEDULE UFL); AMENDING THE PROVISIONS OF THE UNMETERED TRAFFIC LIGHTS SCHEDULE (SCHEDULE ULT); AMENDING THE PROVISIONS OF THE UNMETERED SECURITY CAMERA SCHEDULE (SCHEDULE USC); ADDING THE PROVISIONS OF THE UNMETERED WI -FI DEVICES SCHEDULE (SCHEDULE UWF); AMENDING THE PROVISIONS OF THE OTHER LIGHTING SCHEDULE (SCHEDULE LO); AMENDING THE PROVISIONS OF THE SECURITY LIGHTING SCHEDULE (SCHEDULE DD); AMENDING THE PROVISIONS OF THE DECORATIVE DOWNTOWN LIGHTING SCHEDULE (SCHEDULE DDL); AMENDING THE PROVISIONS OF THE NON STANDARD STREET LIGHTING SCHEDULE (SCHEDULE DSL); AMENDING THE PROVISIONS OF THE TEMPORARY SERVICE SCHEDULE (SCHEDULE Tl); AMENDING THE PROVISIONS OF THE GREENSENSE ENERGY EFFICIENCY REBATE PROGRAM AND RENAMING IT THE "GREENSENSE INCENTIVE PROGRAM" (SCHEDULE GRP); AMENDING THE PROVISIONS OF THE ENERGY COST ADJUSTMENT SCHEDULE (SCHEDULE ECA); AMENDING THE PROVISIONS OF THE RENEWABLE COST ADJUSTMENT SCHEDULE (SCHEDULE RCA); AMENDING THE PROVISIONS OF THE TRANSMISSION COST RECOVERY FACTOR SCHEDULE (SCHEDULE TCRF); AMENDING THE PROVISIONS OF THE DARK FIBER SCHEDULE (SCHEDULE DFR); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Schedule of Rates for electrical services as provided for in Chapter 26 of the City of Denton Code of Ordinances, is amended to read as follows: ELECTRIC RATE SCHEDULES PAGE RES Residential Service 3 RG Residential Renewable Energy Service Rider 5 RPP Residential Prepaid Service 7 RTOU Residential Time of Use 9 GSS General Service Small 12 GSM General Service Medium 14 GSL General Service Large 16 TGS General Service Time of Use 18 G2 Local Government Small 21 GI Local Government 23 WK Weekend Service 25 AF Athletic Field 27 LS Street Lighting 29 LT Traffic Lighting 30 UFL Unmetered School Zone /Crossing Flashers 31 ULT Unmetered Traffic Lighting 32 USC Unmetered Security Camera 33 UWF Unmetered Wi -Fi Devices 34 LO Other Lighting 35 DD Security Lighting 37 DDL Decorative Downtown Lighting 39 DSL Non Standard Street Lighting 40 T1 Temporary Service 42 EGR Economic Growth Rider 44 GRP GreenSense Incentive Program 46 ECA Energy Cost Adjustment 47 RCA Renewable Cost Adjustment 48 TCRF Transmission Cost Recovery Factor 49 DGR Distributed Generation From Renewable Sources Rider 51 IWG Independent Wholesale Generator Rider 53 CGR Commercial Renewable Energy Service Rider 56 SFR Special Facilities Rider 58 DFR Dark Fiber Rate 59 2 SCHEDULE RES RESIDENTIAL SERVICE (Effective 10101115) APPLICATION Applicable to any Customer for all electric service used for residential purposes in an individual private dwelling or an individually metered apartment, supplied at one point of delivery and measured through one meter. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. NET MONTHLY RATE plus; plus; plus; WINTER SUMMER Billing months of Billing months of November through April May through October (1) Facility Charge Single -Phase $ 8.25/bill $ 8.25/bill Three -Phase $16.50/bill $16.50/bill (2) Energy Charge per billing period First 600 kWh 6.51 0/kWh Additional kWh 4.33¢/kWh All kWh 6.51 0/kWh (3) Energy Cost Adjustment Charge See Schedule ECA See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF See Schedule TCRF 3 MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Facility Charge Three -Phase Facility Charge ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 11 SCHEDULE RG RESIDENTIAL RENEWABLE ENERGY SERVICE RIDER (Effective 10101115) APPLICATION Applicable to any Customer for all electric service used for residential purposes in an individual private dwelling or an individually metered apartment, supplied at one point of delivery and measured through one meter. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. In light of additional costs associated with the Residential Renewable Energy Service Rider and to mitigate potential risk to ratepayers, any participant in the Residential Renewable Energy Service Rider must be, at the time this rider is applied for and continuing while such rider is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. NET MONTHLY RATE plus; plus; plus; (1) Facility Charge Three -Phase WINTER Billing Months of November through April $ 8.25 /bill $16.50/bill (2) Energy Charge per billing period First 600 kWh 6.51 0/kWh All Additional kWh 4.33¢/kWh SUMMER Billing Months of May through October $ 8.25 /bill $16.50/bill All kWh 6.51 0/kWh (3) Renewable Cost Adjustment Charge See Schedule RCA See Schedule RCA (4) Transmission Cost Recovery Factor See Schedule TCRF See Schedule TCRF TERM Customers wishing to receive Renewable Energy Service must sign a Residential Renewable Energy Agreement and commit to accept this service for a minimum term of 6 months. At the end of each 6 month period, a customer's Renewable Energy Service will be extended for another 6 month period unless that customer provides a written request to terminate that service to the City of Denton Customer Service Department 15 days prior to the end of the then - current 6 -month participation period. MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Facility Charge Three -Phase Facility Charge ENERGY CHARGE Billing for the energy charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase service (or three phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 31 SCHEDULE RPP RESIDENTIAL PREPAID SERVICE (Effective 10101115) APPLICATION Applicable to any Customer for prepaid electric service used for residential purposes in an individual private dwelling or an individually metered apartment, supplied at one point of delivery and measured through one meter. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. Residential Prepaid Service may initially not be available in all areas. NET MONTHLY RATE plus; plus; plus; (1) Facility Charge Single -Phase Three -Phase WINTER Billing months of November through April $15.25 /bill $22.50/bill (2) Energy Charge per billing period First 600 kWh 6.51 0/kWh Additional kWh 4.33¢/kWh SUMMER Billing months of May through October $15.25 /bill $22.50/bill All kWh 6.51 0/kWh (3) Energy Cost Adjustment Charge See Schedule ECA See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF See Schedule TCRF 7 MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Facility Charge Three -Phase Facility Charge ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. AN The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. SCHEDULE RTOU RESIDENTIAL TIME OF USE (Effective 10101115) APPLICATION Applicable to any Customer for all electric service used for residential purposes in an individual private dwelling or an individually metered apartment, supplied at one point of delivery and measured through one meter. Customers electing this rate must remain on this rate for a minimum of twelve (12) continuous billing months. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. In light of additional costs associated with the Residential Time of Use rate and to mitigate potential risk to ratepayers, any participant in the Residential Time of Use rate must be, at the time this rate is applied for and continuing while such rate is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. Residential Time Of Use may initially not be available in all areas. NET MONTHLY RATE plus; plus; WINTER Billing months of November through April (1) Facility Charge Single -Phase $ 8.25/bill Three -Phase $16.50/bill (2) Energy Charge per billing period First 600 kWh 6.51 0/kWh Additional kWh 4.33¢/kWh All kWh (3) Energy Cost Adjustment Charge I SUMMER Billing months of May through October $ 8.25/bill $16.50/bill 6.51 0/kWh plus; Super -Peak Hours See Schedule ECA On -Peak Hours See Schedule ECA Off -Peak Hours See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single — Phase Facility Charge Three — Phase Facility Charge DEFINITION OF SUPER -PEAK HOURS The City's super -peak hours, for the purpose of this rate schedule, are designated as being from 3:00 P.M. to 8:00 P.M. each day, for the months of June through September. The City's super -peak hours may be changed from time to time. DEFINITION OF ON -PEAK HOURS The City's on -peak hours, for the purpose of this rate schedule, are designated as being from 7:00 A.M. to 3:00 P.M. and 8:00 P.M. to 10:00 P.M. each day, for the months of June through September. The City's on -peak hours for the months of October through May include all hours. The City's on- peak hours may be changed from time to time. DEFINITION OF OFF -PEAK HOURS The City's system off -peak hours, for the purpose of this rate schedule, shall be all hours not designated as on -peak hours and super -peak hours for the months of June through September. I Off -Peak I On -Peak I Suller -Peak I On -Peak I ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE 10 The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 11 SCHEDULE GSS GENERAL SERVICE SMALL (Effective 10101115) APPLICATION The General Service Small (GSS) rate is applicable to any commercial or industrial customer having a maximum demand of less than 2 1. 0 kW in each of the previous twelve (12) months for all electric service supplied at one point of delivery and measured through one meter. If the demand in any month is equal to or exceeds 21.0 kW, billing will be made under the Rate Schedule GSM and Customer must remain on the GSM rate for a minimum of twelve (12) billing periods. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. NET MONTHLY RATE (1) Facility Charge plus; plus; plus; Single -Phase Three -Phase (2) Energy Charge per billing period First 2,500 kWh Additional kWh (3) Energy Cost Adjustment Charge (4) Transmission Cost Recovery Factor MINIMUM BILLING $15.80 /bill $21.10/bill 8.11 0/kWh 4.25¢/kWh See Schedule ECA See Schedule TCRF For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Three -Phase 12 Facility Charge Facility Charge ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 13 SCHEDULE GSM GENERAL SERVICE MEDIUM (Effective 10101115) APPLICATION The General Service Medium (GSM) rate is applicable to any commercial or industrial customer having a maximum demand that meets or exceeds 21.0 kW in any one of the previous twelve (12) months but less than 250 kVA in each of the previous twelve (12) months for all electric service supplied at one point of delivery and measured through one meter. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. NET MONTHLY RATE (1) Facility Charge Single -Phase $15.80 /bill Three -Phase $21.10/bill plus; plus; plus; plus; (2) Demand Charge (3) Energy Charge per billing period First 6,000 kWh Additional kWh (4) Energy Cost Adjustment Charge (5) Transmission Cost Recovery Factor MINIMUM BILLING $4.55/kW (all kW) 4.98¢/kWh 4.11 0/kWh See Schedule ECA See Schedule TCRF For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: (1) The Facility Charge, plus; (2) The Demand Charge 14 DETERMINATION OF DEMAND The demand used in calculating the Demand Charge for the billing period shall be the greater of (1) the actual monthly kW demand as measured during the fifteen (15) minute period of maximum use each month; or (2) seventy percent (70 %) of the maximum monthly actual demand for any month during the previous billing months of May through October in the twelve (12) months ending with the current month. ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block PRIMARY SERVICE DISCOUNT Customers who receive service at secondary voltage (GM 1) shall receive no Energy Charge discount. Customers utilizing City owned and operated facilities and transformation equipment and who are metered at primary voltage (GM2) shall receive an Energy Charge discount of 0.1 0/kWh. Customers who own, operate, and maintain all facilities necessary to receive three -phase primary voltage service and all transformation facilities required for conversion to utilization voltage (GM3) shall receive an Energy Charge discount of 0.3¢ /kWh. The City shall own, operate and maintain all metering facilities, either at primary or secondary voltage. TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. Au The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 15 SCHEDULE GSL GENERAL SERVICE LARGE (Effective 10101115) APPLICATION The General Service Large (GSL) Rate is applicable to any commercial or industrial customer having a minimum actual demand of 250 kVA for all electric service supplied at one point of delivery and measured through one meter. Customers other than commercial and industrial may be allowed service under this rate, subject to the minimum billing provision. Customers who elect to discontinue service under this rate are ineligible for service under this rate for twelve months. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. NET MONTHLY RATE plus; plus; plus; plus; (1) Facility Charge $65.55 /bill (2) Demand Charge $10.25/kVA (Minimum of 250 kVA billed) (3) Energy Charge per billing period First 200,000 kWh 2.33¢/kWh Additional kWh 1.33¢/kWh (4) Energy Cost Adjustment Charge See Schedule ECA (5) Transmission Cost Recovery Factor See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: plus; (1) The Facility Charge, (2) The Demand Charge 16 DETERMINATION OF DEMAND The demand used in calculating the Demand Charge for the billing period shall be the greater of (1) the actual monthly kVA demand as measured during the fifteen (15) minute period of maximum use each month; or (2) 250 kVA; or (3) seventy percent (70 %) of the maximum monthly kVA actual demand for any month during the previous billing months of May through October in the twelve (12) month period ending with the current month. ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block PRIMARY SERVICE DISCOUNT Customers who receive service at secondary voltage (GL 1) shall receive no Energy Charge discount. Customers utilizing City owned and operated facilities and transformation equipment and who are metered at primary voltage (GL2) shall receive an Energy Charge discount of 0.1 ¢/kWh. Customers who own, operate, and maintain all facilities necessary to receive three -phase primary voltage service and all transformation facilities required for conversion to utilization voltage (GL3) shall receive an Energy Charge discount of 0.3¢ /kWh. The City shall own, operate and maintain all metering facilities, either at primary or secondary voltage. TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. Au The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 17 SCHEDULE TGS GENERAL SERVICE TIME OF USE (Effective 10101115) APPLICATION Applicable to any customer having a minimum demand of 250 kVA for all electric service supplied at one point of delivery and measured through one meter, with the City providing all facilities necessary to receive primary voltage service. Customers electing this rate must remain on this rate for a minimum of twelve (12) continuous billing months. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. In light of additional costs associated with the General Service Time of Use rate and to mitigate potential risk to ratepayers, any participant in the General Service Time of Use rate must be, at the time this rate is applied for and continuing while such rate is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. NET MONTHLY RATE (1) Facility Charge $76.45/bill plus; plus; plus; plus; plus; (2) On -Peak Demand Charge $13.06/kVA (3) Off -Peak Demand Charge $2.58/kVA (4) Energy Charge per billing period 0.78¢ /kWh (5) Energy Cost Adjustment Charge See Schedule ECA (6) Transmission Cost Recovery Factor See Schedule TCRF In MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: plus; plus; (1) The Facility Charge, (2) The Off -Peak Demand Charge, (3) The On -Peak Demand Charge DEFINITION OF ON -PEAK HOURS The City's on -peak hours, for the purpose of this rate schedule, are designated as being from 2:00 P.M. to 7:00 P.M. each Monday through Friday, for the months of June through September excluding Independence Day and Labor Day. The City's on -peak hours may be changed from time to time. DEFINITION OF OFF -PEAK HOURS The City's system (off -peak) hours, for the purpose of this rate schedule, shall be all hours not designated as on -peak hours. DETERMINATION OF ON -PEAK DEMAND The demand used in calculating the On -Peak Demand Charge for the billing period shall be the greater o£ (1) the WA actual demand supplied during the fifteen (15) minute period of maximum use each month during on -peak hours as recorded by the City's demand meter, or (2) one hundred percent (100 %) of the actual maximum on -peak demand similarly determined during the billing months of June through September in the twelve (12) months immediately preceding the current month. The On Peak Demand Charge will be applied to each billing period. DETERMINATION OF OFF -PEAK DEMAND The demand used in calculating the Off -Peak Demand Charge for the billing period shall be the actual WA demand supplied during the fifteen (15) minute period of maximum use during off -peak hours each month as recorded by the City's demand meter. The Off -Peak Demand Charge will be applied to each billing period. DETERMINATION OF DEMAND BILLING FOR CUSTOMERS WITH NO PEAK DEMAND 19 HISTORY DURING OFF -PEAK MONTHS If the Customer is new or does not have a history of on -peak use for June through September, and elects to accept service on the TGS rate, the Customer's billed demand shall be the off -peak demand billed at the GSL demand rate. The off -peak demand will be billed every month at the GSL rate until the customer establishes a separate on -peak and off -peak demand during an on -peak month. At this time, both on -peak and off -peak demand will then begin billing at the TGS rate. PRIMARY SERVICE DISCOUNT Customers who receive service at secondary voltage (TG1) shall receive no Energy Charge discount. Customers utilizing City owned and operated facilities and transformation equipment and who are metered at primary voltage (TG2) shall receive an Energy Charge discount of 0.1 ¢ /kWh. Customers, who own, operate and maintain all facilities necessary to receive three -phase primary voltage service and all transformation facilities required for conversion to utilization voltage (TG3) shall receive an Energy Charge discount of 0.3¢ /kWh. The City shall own, operate and maintain all metering facilities, either at primary or secondary voltage. ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWWVAWu0 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 20 SCHEDULE G2 LOCAL GOVERNMENT SERVICE SMALL (Effective 10101115) APPLICATION Applicable to any local City, County or School District having a maximum demand of less than 21.0 kW in each of the previous twelve (12) months for all electric service supplied at one point of delivery and measured through one meter. If the demand in any month equals or exceeds 21.0 kW, billing will be made under the Rate Schedule G1 and Customer must remain on the G1 rate for a minimum of twelve (12) billing periods. This rate is not applicable to resale service in any event, or to temporary, standby or supplementary service. NET MONTHLY RATE plus; plus; plus; (1) Facility Charge Single -Phase $15.80 /bill Three -Phase $21.10/bill (2) Energy Charge 7.36¢/kWh (3) Energy Cost Adjustment Charge See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: (1) Facility Charge 21 ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. P A YMF.NT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 22 SCHEDULE GI LOCAL GOVERNMENT SERVICE (Effective 10101115) APPLICATION The Local Government Service (G1) rate is applicable to any local City, County, or School District having a maximum demand that equals or exceeds 2 1. 0 kW in any one of the previous twelve (12) months but less than 250 WA in each of the previous twelve (12) months for all electric service supplied at one point of delivery and measured through one meter. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service. NET MONTHLY RATE (1) Facility Charge Single -Phase $15.80 /bill Three -Phase $21.10/bill plus; (2) Demand Charge $7.78/kW plus; (3) Energy Charge 3.52¢/kWh plus; (4) Energy Cost Adjustment Charge See Schedule ECA plus; (5) Transmission Cost Recovery Factor See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: (1) Facility Charge, plus; (2) Demand Charge 23 DETERMINATION OF DEMAND The demand used in calculating the Demand Charge for the billing period shall be the greater of- (1) The actual kW demand supplied during the fifteen (15) minute period of maximum use during the current month as determined by City's demand meter; or (2) not less than 50% of the highest monthly actual demand determined during the billing months of May through October in the twelve (12) months immediately preceding the current month. ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. P A YMF.NT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 24 SCHEDULE WK WEEKEND SERVICE (Effective 10101115) APPLICATION Applicable to any commercial and industrial user whose maximum demand load occurs during the period from Thursday at 12 midnight through Sunday at 12 midnight and does not experience a demand load during the period from Sunday 12 midnight through Thursday 12 midnight that exceeds 80% of the maximum demand load. Customers who violate the 80% requirement more than four (4) times during the month, or more than twice on the same day of the week, during the months of June through September, are ineligible for service under this rate for twelve (12) months. This rate is not applicable to resale service in any event, or to temporary, standby or supplementary service except in conjunction with applicable rider. NET MONTHLY RATE plus; plus; plus; plus; (1) Facility Charge MINIMUM BILLING plus; (1) Facility Charge (2) Demand Charge 25 Single -Phase $20.86/bill Three -Phase $26.08/bill (2) Demand Charge $7.3 l/kW (First 20 kW not billed) (3) Energy Charge per billing period First 2,500 kWh 8.11¢/kWh Next 3,500 kWh 4.25¢/kWh Additional kWh 3.13¢/kWh (4) Energy Cost Adjustment Charge See Schedule ECA (5) Transmission Cost Recovery Factor See Schedule TCRF MINIMUM BILLING plus; (1) Facility Charge (2) Demand Charge 25 DETERMINATION OF DEMAND The demand used in calculating the Demand Charge for the billing period shall be the greater of (1) the actual kW demand supplied during the fifteen (15) minute period of maximum use during the current billing period as determined by the City's demand meter less 20 kW; or (2) zero (0). ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase service (or three -phase service if available at the point of delivery) at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 26 SCHEDULE AF ATHLETIC FIELD (Effective 10101115) APPLICATION Applicable to all electric service metered at one point for use to light specified areas for athletic events. This rate is not applicable to resale service in any event, or to temporary, standby, or supplementary service except in conjunction with applicable rider. NET MONTHLY RATE (1) Facility Charge Single -Phase $21.07 /bill Three -Phase $31.60/bill plus; plus; plus: plus; (2) Energy Charge per billing period Billing months of June through September: Peak (2:00 PM to 7:00 PM) Off Peak (All Other Hours) Billing months of October through May: All hours (3) Demand Charge Billing months of June through September: Peak (2:00 PM - 7:00 PM) Off Peak (All Other Hours) Billing months of October through May: All hours (4) Energy Cost Adjustment Charge (5) Transmission Cost Recovery Factor 27 9.05 ¢/kWh 4.53 ¢/kWh 4.53¢/kWh $5.61 /kW $1.33 /kW $1.33 /kW See Schedule ECA See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Facility Charge Three -Phase Facility Charge DETERMINATION OF DEMAND The demand used in calculating the Demand Charge for the billing period shall be the actual kW demand supplied during the fifteen (15) minute period of maximum use during the current billing period as determined by the City's demand meter. ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh in rate block x Rate per kWh in rate block TYPE OF SERVICE The City will supply single -phase or three -phase service at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. SCHEDULE LS STREET LIGHTING (Effective 10101115) APPLICATION Applicable to all street lighting owned and maintained by the City of Denton. NET MONTHLY RATE plus; (1) Facility Charge Rate Luminaire Type LSA 100 W LSB 250 W LSC 400 W (2) Energy Cost Adjustment Charge Rate LSA LSB LSC LSD LSE LSF TYPE OF SERVICE Luminaire Tvpe 100 W Sodium Vapor 250 W Sodium Vapor 400 W Sodium Vapor 100 W Equivalent LED 250 W Equivalent LED 400 W Equivalent LED Facility Charge $5.53 /bill $7.84/bill $9.87/bill (Current ECA per Schedule ECA) x (Bulb Wattage Factor where the following Bulb Wattage Factors apply); Bulb Wattage Factor 48 kWh 105 kWh 159 kWh 25 kWh 96 kWh 148 kWh The City will supply single- phase, sixty (60) cycle service at 120, 240, or 480 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the customer, subject to the Special Facilities Rider, may be required where service of the type desired by the customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 29 SCHEDULE LT TRAFFIC LIGHTING (Effective 10101115) APPLICATION Applicable to State and Local Government agencies that operate and maintain their own traffic signals. NET MONTHLY RATE (1) Energy Charge per billing period plus; (2) Energy Cost Adjustment Charge plus; (3) Transmission Cost Recovery Factor ENERGY CHARGE 6.32¢ /kWh See Schedule ECA See Schedule TCRF Billing for the energy charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 30 SCHEDULE UFL UNMETERED SCHOOL ZONE/CROSSING FLASHERS (Effective 10101115) APPLICATION Applicable to Local Government agencies that operate and maintain their own unmetered school zone /crossing flashers. NET ANNUAL RATE plus; plus; (1) Energy Charge per billing period 6.32¢ /kWh (2) Energy Cost Adjustment Charge See Schedule ECA (3) Transmission Cost Recovery Factor See Schedule TCRF ENERGY CHARGE Billing for the energy charge shall be based on historical recorded annual kWh consumption. The total billed usage divided by number of school zone /crossing flashers will determine the average kWh usage. This average consumption will be billed for each school zone /crossing flasher once every twelve (12) months at the end of the fiscal year. Any accounts that are added during the year will be billed on prorated consumption. Energy Charge = kWh x kWh Rate Annual Usage = 48 kWh per account TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 31 SCHEDULE ULT UNMETERED TRAFFIC LIGHTING (Effective 10101115) APPLICATION Applicable to Local Government agencies that operate and maintain their own unmetered traffic signals. NET ANNUAL RATE (1) Energy Charge per billing period plus; (2) Energy Cost Adjustment Charge plus; (3) Transmission Cost Recovery Factor ENERGY CHARGE 6.32¢ /kWh See Schedule ECA. See Schedule TCRF Billing for the energy charge shall be based on historical recorded annual kWh consumption. The total billed usage divided by number of lighted intersections will determine the average kWh usage. This average consumption will be billed for each lighted intersection once every twelve (12) months at the end of the fiscal year. Any accounts that are added during the year will be billed on prorated consumption. Energy Charge = kWh x kWh Rate Annual Usage = 904 kWh per account TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. Au The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 32 SCHEDULE USC UNMETERED SECURITY CAMERA (Effective 10101115) APPLICATION Applicable to Local Government agencies that operate and maintain their own unmetered security cameras. NET ANNUAL RATE plus; plus; plus; (1) Facility Charge $16.96 (2) Energy Charge 6.32¢/kWh (3) Energy Cost Adjustment Charge See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF ENERGY CHARGE Billing for the energy charge shall be based on technical information of installed equipment. This calculated consumption will be billed for each camera once every twelve (12) months at the end of the fiscal year. Any accounts that are added during the year will be billed on prorated consumption. Energy Charge = annual kWh per camera x kWh Rate Annual Usage = 300 kWh per camera per account TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 33 SCHEDULE UWF UNMETERED WI -FI DEVICES (Effective 10101115) APPLICATION Applicable to Local Government agencies that operate and maintain their own unmetered Wi -Fi devices. NET ANNUAL RATE plus; plus; plus; (1) Facility Charge $16.96 (2) Energy Charge 6.32¢/kWh (3) Energy Cost Adjustment Charge See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF ENERGY CHARGE Billing for the energy charge shall be based on technical information of installed equipment. This calculated consumption will be billed for each device once every twelve (12) months at the end of the fiscal year. Any accounts that are added during the year will be billed on prorated consumption. Energy Charge = annual kWh per device x kWh Rate Annual Usage = 300 kWh per device per account TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 34 SCHEDULE LO OTHER LIGHTING (Effective 10101115) APPLICATION Applicable to Texas Department of Transportation unmetered and metered safety lighting systems and continuous lighting systems as those terms are defined in Texas Administrative Code, Title 43, Part 1, Chapter 25, Subchapter A, Rule §25.11. DEFINTTION The following definitions apply to this Schedule LO: Hours of Operation Per Billing Period = 333 hours Bulb Wattage is the rated wattage of the luminaire bulb NET MONTHLY RATE LOA ( Unmetered Lighting) plus; (1) Energy Charge per billing period (2) Energy Cost Adjustment Charge ENERGY CHARGE LOA ( Unmetered Lighting) 6.32¢/kWh (Current ECA per Schedule ECA) x (Bulb Wattage /1000) x (Hours of Operation Per Billing Period) Billing for the Energy Charge shall be based on estimated kWh consumption during the billing period. Energy Charge = (kWh Rate x Bulb Wattage/ 1000) x (Hours of Operation Per Billing Period) NET MONTHLY RATE LOB (Metered Lighting) plus; (1) Energy Charge per billing period 6.32¢ /kWh (2) Energy Cost Adjustment Charge See Schedule ECA 35 ENERGY CHARGE LOB (Metered Lighting) Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate TYPE OF SERVICE The City will supply single - phase, sixty (60) cycle service at 120 or 240 volts from the City's distribution system through one standard transformation. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. FWAXNA VO ► 1 The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 36 SCHEDULE DD SECURITY LIGHTING (Effective 10101115) APPLICATION Applicable to any customer within the area served by the City's electric distribution system for outdoor area lighting when such lighting facilities are operated as an extension of the City's distribution system. NET MONTHLY RATE (1) Facility Charge plus; Rate Luminaire Type Facility Charge DSA 100 W Sodium Vapor $ 9.15/bill DSB 250 W Sodium Vapor $12.10/bill DSC 400 W Sodium Vapor $14.58/bill DHA 250 W Metal Halide $14.23/bill DHB 400 W Metal Halide $16.96/bill (2) Energy Cost Adjustment Charge (Current ECA per Schedule ECA) x (Monthly Bulb Wattage Factor where the following Bulb Wattage Factors apply); Rate DSA DSB DSC DHA DHB TYPE OF SERVICE Luminaire Type 100 W Sodium Vapor 250 W Sodium Vapor 400 W Sodium Vapor 250 W Metal Halide 400 W Metal Halide Bulb Wattage Factor 48 kWh 105 kWh 159 kWh 105 kWh 159 kWh The City shall furnish, install, maintain and deliver electric service to automatically controlled, metal halide or sodium vapor lighting fixtures conforming to the City's standards and subject to its published rules and regulations. Where necessary for proper illumination or where existing poles are inadequate, the City will install 37 or cause to be installed, one (1) wood pole with the necessary lighting hardware and overhead conductor for each installed light, at a distance not to exceed eighty (80') feet from existing lines, at no charge to the Customer. Additional contractual arrangements between the City and the customer, subject to the Special Facilities Rider, may be required where the eighty (80') feet distance limit is exceeded or service of the type desired by the Customer is otherwise not available at the point of service. TERM OF CONTRACT A two (2) year contract shall be agreed to and signed by each Customer desiring Security Lighting Service authorizing fixed monthly charges, which may be reviewed annually, and to be applied to the Customer's monthly municipal utilities bill. In the event that a Customer requests the removal of the unit or discontinuance of the service prior to completion of two (2) years, the remainder of the contract period shall become due and payable. After the end of the initial two (2) year contract, service shall continue on a month -to -month basis and may be canceled by either parry upon thirty (30) days' notice. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. SCHEDULE DDL DOWNTOWN DECORATIVE LIGHTING (Effective 10101115) APPLICATION Applicable to any Customer requesting service on the perimeter of the historic County Courthouse Square located in downtown Denton and served by the City's existing electric distribution system for outdoor area lighting at said location. NET MONTHLY RATE plus; (1) Facility Charge $4.55/bill (2) Energy Cost Adjustment (Current ECA per Schedule ECA) x (350 kWh per Customer) TYPE OF SERVICE The City shall furnish, install, maintain and deliver electric service to automatically controlled lighting fixtures conforming to the City's standards and subject to its published rules and regulations. The service is provided between dusk and midnight. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. FACILITY CHARGE The Facility Charge shall be assessed on each bill rendered. 39 SCHEDULE DSL NON - STANDARD STREET LIGHTING (Effective 10101115) APPLICATION Applicable to street lighting owned and maintained by the Customer. Availability of this service is contingent on the existence of an executed Special Facilities Rider between the legally responsible party and the City under which the legally responsible party accepts all responsibilities, both legal and financial, related to operation and maintenance of the subject lights, including but not limited to payment of all applicable energy charges. NET MONTHLY RATE plus; plus; (1) Facility Charge $8.74/bill (2) Energy Charge 6.32¢/kWh Energy Charge = (kWh Rate) x (Bulb Wattage Factor) (3) Energy Cost Adjustment Charge (Current ECA per Schedule ECA) x (Monthly Bulb Wattage Factor where the following Bulb Wattage Factors apply); Rate Luminaire Type Bulb Wattage Factor DLSA 100 W Sodium Vapor 48 kWh DLSB 250 W Sodium Vapor 105 kWh DLSC 400 W Sodium Vapor 159 kWh DLHA 250 W Metal Halide 105 kWh DLHB 400 W Metal Halide 159 kWh Other — For any lamp types installed by owner that are not included in the list above, a Bulb Wattage Factor will be determined for each unique type. TYPE OF SERVICE The City shall deliver single- phase, sixty (60) cycle service at 120 or 240 volts to the site for non- standard streetlight fixtures supplied by the customer, and installed by the City in accordance with Municipal Code requirements. Additional contractual arrangements between the City and the customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. IN ADDITIONAL SERVICE CHARGES If the City is required to maintain the privately owned lights to ensure public safety, the owner of the lights may be subject to additional service charges. The additional service charges shall be the actual cost of performing any work required to perform the necessary maintenance including but not limited to: Labor Regular time or overtime labor hourly rates in effect at the time the work is performed for all personnel performing the work. Labor charges shall be based on a one (1) hour minimum with all additional time above the minimum to be measured to the nearest one - quarter hour. Transportation To be billed by hours or miles, as applicable, according to the estimated cost of operating the required equipment. Material Any material needed to repair and/or maintain facilities will be billed at City of Denton Warehouse cost plus 25 %. Administrative Fee 10% of the total labor, transportation, and material costs. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 41 SCHEDULE TI TEMPORARY SERVICE (Effective 10101115) APPLICATION Applicable when a Customer requests electric service on a short term or temporary basis where a customer has received a permit from the City Building Inspections Department. This rate is not applicable after the certificate of occupancy or building final inspection has been issued. NET MONTHLY RATE (1) Facility Charge Single -Phase $15.80 /bill Three -Phase $21.10/bill plus; plus; plus; (2) Energy Charge per billing period 8.12¢ /kWh (3) Energy Cost Adjustment Charge See Schedule ECA (4) Transmission Cost Recovery Factor See Schedule TCRF MINIMUM BILLING For each billing period, the Customer shall be obligated to pay the following charges as a minimum, whether or not any energy was actually used: Single -Phase Facility Charge Three -Phase Facility Charge ENERGY CHARGE Billing for the Energy Charge shall be based on actual kWh consumption during the billing period. Energy Charge = kWh x kWh Rate 42 TYPE OF SERVICE The City will supply single -phase service at sixty (60) cycles at a standard secondary voltage available at the site. Additional contractual arrangements between the City and the Customer, subject to the Special Facilities Rider, may be required where service of the type desired by the Customer is not available at the point of service. ADDITIONAL TEMPORARY SERVICE CHARGES Labor Regular time or overtime labor hourly rates in effect at the time the work is performed for all personnel performing the work. Labor charges shall be based on a one (1) hour minimum with all additional time above the minimum to be measured to the nearest one - quarter hour. Transportation To be billed by hours or miles, as applicable, according to the estimated cost of operating the required equipment. Material Material that cannot be salvaged shall be billed at City of Denton Warehouse cost plus 25 %, plus applicable sales tax. At the time a temporary service is removed or converted, any loss of the installed material due to negligence or willful action by the Customer will be billed separately to the Customer at replacement cost plus 25 %, plus applicable sales tax. Administrative Fee 10% of the total labor, transportation, and material costs. PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. 43 SCHEDULE EGR ECONOMIC GROWTH RIDER (Effective 10101115) PT TRPOSF. The purpose of this rider is to facilitate local economic growth and expand the ad valorem tax base of the City of Denton. AVAILABILITY This rider is available to the Customers who: (1) Receive service from Rate Schedules GSL or TGS; and (2) Pay City of Denton ad valorem tax; and (3) Receive no electric service discounts other than those specifically defined in the GSL or TGS rate schedules. APPLICATION This rider is available to electric service supplied at any one location. It is for firm electric service applicable to new and existing Customers as described below, over a five (5) year period. This rider is available to the following classes of Customers: (1) New customers whose electric service represents demand not previously served by the City at any location in the City's service area in the last twelve (12) months, where such metered demand will be in excess of 1,000 kVA, as estimated and mutually agreed upon by the DME General Manager and the customer. (2) Existing customers served under Rate Schedules GSL or TGS who increase their prior existing metered demand by 1,000 kVA. This increase shall be verified by sub - metering (at the Customers expense) the additional load. If sub - metering is not possible, at the discretion of the General Manager, the increase may be verified by comparing a three -month rolling average of the new level of demand to the prior demand averaged for corresponding months. During periods in which this verification method cannot be applied, the General Manager and the Customer may develop a mutually agreed -upon formula to estimate the base and additional demand levels. In light of additional costs associated with the Economic Growth Rider and to mitigate potential risk to ratepayers, any participant in the Economic Growth Rider must be, at the time this rider is applied for and continuing while such rider is in effect, a customer in good standing of all Denton Municipal .. Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. NET MONTHLY RATE The Customer shall be charged under the appropriate applicable rate schedules with the exception that the monthly billing demand (for GSL) or system demand and on -peak demand (for TGS) will be adjusted in accordance with the following table: Time Period First Year Second Year Third Year Fourth Year Fifth Year CONTRACT PERIOD Reduction to Billing Demand 50% 40% 30% 20% 10% The term of the contract will be for five (5) years. E. SCHEDULE GIP GREENSENSE INCENTIVE PROGRAM (Effective 10101115) PROGRAM SUMMARY The objective of the GreenSense Incentive Program ( "Program ") is to reduce energy demand and consumption by promoting energy conservation, thereby reducing the utility bills of Denton Municipal Electric (DME) customers, reducing the peak load of the DME's electric system, reducing emissions in the state, and promoting energy conservation. The Program offers incentives, in the form of credits on the electric service bills of DME retail customers. Cash incentives may be paid to retail customers for the installation of photovoltaic applications. In light of additional costs associated with the GreenSense Incentive Program and to mitigate potential risk to ratepayers, any participant in the GreenSense Incentive Program must be, at the time this program is applied for and continuing while such program is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. Program applicants will be able to qualify for multiple incentives simultaneously, unless specified in the individual guidelines. A separate application may be necessary for each incentive. The Program will be in effect each fiscal year beginning on October 1, until the allotted funding is depleted or until cancellation of the program by DME. At the time the funds are depleted, no additional applications for participation will be accepted until the next fiscal year. Qualifying applicants must receive electric service from DME. The Program guidelines and payments are subject to change by DME without prior notice. DME may, at any time, discontinue the Program without prior notice. The current program guidelines may be found in the GreenSense Incentive Program Manual located at www.dmepower.com. M SCHEDULE ECA ENERGY COST ADJUSTMENT (Effective 10101115) The Energy Cost Adjustment (ECA) rate shall be set by the Public Utilities Board (PUB). The ECA rate shall be reviewed on a quarterly basis and adjusted as defined below to recover the variable cost of energy delivered to customers and to maintain DME in a financially sound position. ENERGY COST ADJUSTMENT BALANCING ACCOUNT CALCULATION The ECA Balancing Account shall be calculated using the following formula: Where: ECA Balancing Account = (Actual plus Projected ECA revenue) — (Projected Energy Cost) Projected Energy Cost = (Actual plus Projected cumulative cost of fuel) + (Actual plus Projected cumulative variable purchased energy cost). The General Manager, Denton Municipal Electric (DME) or his/her designee shall calculate the ECA Balancing Account monthly. In the event that the ECA Balancing Account calculated during the last month of each fiscal quarter (December, March, June, and September) is over /under collected by $5,000,000 or more during the next quarter, the General Manager, DME or his/her designee may recommend to the PUB any actions to maintain DME in a financially sound position. ENERGY COST ADJUSTMENT CALCULATION ECA = [(Projected Energy Cost) + (ECA Balancing Account)] / (Projected kWh sales) ENERGY COST ADJUSTMENT CHARGE The Energy Cost Adjustment Charge shall be based on actual kWh consumption during the billing period. Energy Cost Adjustment Charge = kWh x ECA rate Residential Time -Of -Use (Schedule RTOU): Super -Peak ECA Charge = kWh x [ECA + (ECA x 53.5 %)] On -Peak ECA Charge = kWh x ECA rate Off -Peak ECA Charge = kWh x [ECA — (ECA x 48.8 %)] 47 SCHEDULE RCA RENEWABLE COST ADJUSTMENT (Effective 10101115) The Renewable Cost Adjustment (RCA) rate shall be set by the Public Utilities Board (PUB). The RCA rate shall be reviewed on a quarterly basis and adjusted as defined below to recover the cost of renewable energy delivered to customers. Renewable energy cost includes the Energy Cost Adjustment Charge (see Schedule ECA) plus the cost of Renewable Energy Credits (REC) purchased. RENEWABLE COST ADJUSTMENT BALANCING ACCOUNT CALCULATION The RCA Balancing Account shall be calculated using the following formula: Where: RCA Balancing Account = (Actual plus Projected RCA revenue) — (Projected Renewable Energy Cost) Projected Renewable Energy Cost = (Actual plus Projected cumulative ECA cost) + (Actual plus Projected REC cost) During the last month of each fiscal year quarter (December, March, June, and September), the DME General Manager or his/her designee shall calculate the RCA Balancing Account. In the event that the RCA Balancing Account calculated during the last month of each fiscal quarter is over /under collected by $100,000 or more during the next quarter, the General Manager or his/her designee may recommend to the PUB any actions to maintain DME in a financially sound position. RENEWABLE COST ADJUSTMENT CALCULATION Where: RCA = ECA + [(Projected Renewable Energy Cost) / (Projected kWh sales)] Projected Renewable Energy Cost = Actual + Projected REC cost RENEWABLE COST ADJUSTMENT CHARGE The Renewable Cost Adjustment Charge shall be based on actual kWh consumption during the billing period. Renewable Cost Adjustment Charge = kWh x RCA rate Residential Time -Of -Use (Schedule RTOU): Super -Peak RCA Charge = kWh x [RCA + (RCA x 53.5 %)] On -Peak RCA Charge = kWh x RCA rate Off -Peak RCA Charge = kWh x [RCA — (RCA x 48.8 %)] M. SCHEDULE TCRF TRANSMISSION COST RECOVERY FACTOR (Effective 10101115) The Transmission Cost Recovery Factor (TCRF) rate shall be set by the Public Utilities Board (PUB) effective October 1, 2014. Thereafter, the TCRF rate shall be reviewed on a monthly basis and adjusted by the Public Utilities Board as defined below to recover the costs of transmission service within the boundaries of the Electric Reliability Council of Texas ( ERCOT) region which are billed and charged to Denton Municipal Electric (DME). Transmission rates included in the TCRF shall be the net Transmission Cost of Service (TCOS) billed to DME as calculated, which net TCOS is also billed and distributed to all ERCOT utilities by ERCOT; as such TCOS rates are approved by the Public Utility Commission of Texas (PUCT). TRANSMISSION COST RECOVERY FACTOR BALANCING ACCOUNT CALCULATION The TCRF shall be calculated using the following formula: TCRF Annual Billing = (Actual monthly net TCOS billing amounts charged by ERCOT transmission service providers to DME) + (Projected Increases or Decreases PUCT- approved TCOS billing amount charges to ERCOT utilities) The General Manager, DME, or his /her designee shall calculate the TCRF Balancing Account monthly. The TCRF billed amount will be calculated monthly and adjusted accordingly by annualizing the PUCT- approved TCOS billing amounts for the current calendar year. The total TCRF Annual Billing shall be allocated to DME's various rate classes based on projected kWh sales for that rate class. The TCRF charge will be developed by DME for each applicable customer billing schedule herein, based on projected kWh sales for billing schedules without a demand component and on monthly peak kW for billing schedules with a demand component. TRANSMISSION COST RECOVERY FACTOR CALCULATION TCRF Rate Class Allocation Amount = [(TCRF Annual Billing) x (Projected Rate Class kWh Usage)] / (Total Projected Usage for all Rate Classes). TRANSMISSION COST RECOVERY FACTOR CHARGE The Transmission Cost Recovery Factor Charge shall be based on projected kWh consumption for each rate class: .. i:�:T" Residential kWh x TCRF Rate General Service Small kWh x TCRF Rate General Service Medium kW x TCRF Rate General Service Large kVA x TCRF Rate General Service Time of Use kVA x TCRF Rate Local Government Service Small kWh x TCRF Rate Local Government Service kW x TCRF Rate Weekend Service kW x TCRF Rate Temporary Service kWh x TCRF Rate Athletic Field kWh x TCRF Rate Traffic Lighting kWh x TCRF Rate Non - Traffic Lighting kWh x TCRF Rate Unmetered School Zone /Crossing kWh x TCRF Rate Unmetered Security Camera kWh x TCRF Rate Unmetered Wi -Fi Devices kWh x TCRF Rate C SCHEDULE DGR DISTRIBUTED GENERATION FROM RENEWABLE SOURCES RIDER (Effective 10101115) APPLICATION This Rider is available to any retail customer receiving electric service under a DME electric rate schedule who owns and operates an on -site generating system powered by a renewable resource capable of producing power, and who interconnects with the DME electric system. Renewable energy technology is any technology that exclusively relies on an energy source that is naturally regenerated over a short time and derived directly or indirectly from the sun or wind. A renewable energy technology does not rely on energy resources derived from fossil fuels, waste products from fossil fuels, or waste products from inorganic sources. This Rider applies to a Customer - owned generating system that primarily offsets part or all of the Customer's electric service provided by DME. If the Customer -owned generating system larger than 50kW or if the system's primary purpose is to sell energy to the grid and not offset the Customer's consumption, special arrangements and contract may be necessary. In light of additional costs associated with the Distributed Generation From Renewable Sources Rider and to mitigate potential risk to ratepayers, any participant in the Distributed Generation From Renewable Sources Rider must be, at the time this rider is applied for and continuing while such rider is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. CONDITIONS OF SERVICE All charges, character of service, and terms and conditions of the electric rate schedule under which the Customer receives service shall apply except as expressly altered by this Rider. The Customer shall comply with the current DME technical requirements for distributed generation interconnection. The Customer shall obtain approval from DME before the Customer energizes the customer's on -site generating system or interconnects it with the DME electric system. The Customer shall submit to DME a completed interconnection application form and signed Standard Agreement for Interconnection and Parallel Operation of Distributed Generation Agreement. The minimum term of an Agreement under this Rider is one year, extended automatically unless terminated by either party with sixty days advance written notice The Customer is responsible for the costs of interconnecting with the DME electric system, including transformers, service lines, or other equipment determined necessary by DME for safe installation and operation of the Customer's equipment with the City's system. The Customer is responsible for any costs associated with required inspections and permits. 51 METERING Metering under this Rider shall be performed by a single meter capable of registering the flow of electricity in two directions (delivered and received) to determine the Customer's net energy flow. RATE Beginning in a billing period after a Customer receives approval to interconnect the Customer's on -site generating system from the City of Denton; all energy generated by the Customer's system and delivered to the DME electric system will be considered renewable energy. The Customer shall be billed for all energy delivered by DME to the Customer under the approved residential rates. For any generation delivered by the Customer's system to the DME system up to the amount of energy delivered by DME to the Customer, the City shall credit the Customer's account for the energy generated as follows: Generation Credit = [(kWh delivered from the Customer's approved system) x (Customer's base electric service rate)] + [(kWh delivered from the Customer's approved system) x (RCA rate)] For all energy delivered by the Customer's system to the DME system that exceeds the amount of energy delivered by DME to the Customer, the City shall credit the Customer's account for the energy generated as follows: Excess Generation Credit = (kWh delivered from the Customer's system) x RCA rate (see Schedule RCA). Any Billing Period Credit shall be applied to the utility charges due from the Customer to the City of Denton for the billing period. INDEMNIFICATION The Customer operating the renewable distributed generation system indemnifies DME and holds DME harmless for all damages and injuries to DME, the Customer, or others arising out of Customer's use, ownership or operation of Customer's distributed generation facilities in parallel with DME's system. Customer is solely responsible for providing adequate protection for operating in parallel with DME's system in such a manner that faults or other disturbances on the DME system do not cause damage to the Customer's distributed generation equipment. 52 SCHEDULE IWG INDEPENDENT WHOLESALE GENERATOR (Effective 10101115) APPLICATION The Independent Wholesale Generator (IWG) rate is applicable to non - renewable generating installations of ten (10) MW or less interconnected to and operating in parallel with DME's distribution system, for the sole purpose of delivering the net output (gross output minus auxiliary load and step up transformer loses) of said generating installation to the Electric Reliability Council of Texas ( ERCOT) transmission grid for sale in the ERCOT wholesale power market. DME will interconnect the IWG pursuant to the terms of the DME standard Agreement for Interconnection and Parallel Operation of Independent Wholesale Generation. Other services or special requirements for interconnection of a specific generating facility not included in the DME standard Agreement for Interconnection and Parallel Operation of Independent Wholesale Generation, requested by the IWG Customer, or required by DME may be provided pursuant to negotiation and agreement by both the IWG Customer and DME. The provision of said additional services or requirements shall be recorded in the form of an addendum to the DME standard Agreement for Interconnection and Parallel Operation of Independent Wholesale Generation. TERMS AND CONDITIONS OF SERVICE At a minimum, the IWG Customer shall comply with the current DME technical requirements for independent wholesale generation interconnection specified in the DME standard Agreement for Interconnection and Parallel Operation of Distributed Generation. The IWG Customer may not begin construction of its facilities until an Agreement for Interconnection and Parallel Operation of Distributed Generation has been signed by both the IWG Customer and the City of Denton. The IWG Customer shall obtain approval from DME before the IWG Customer begins operation of its generating system or interconnects it with the DME electric system. The IWG Customer is responsible for any costs associated with required City of Denton and /or DME inspections and permits. PRE - INTERCONNECTION STUDIES DME may, at its sole discretion perform pre- interconnection studies DME or the City of Denton deems appropriate, which may include, but are not restricted to, a service study, coordination study, emissions impact study, and utility system impact study. In instances where such studies are deemed necessary, the scope of such studies shall be based on the characteristics of the particular IWG generation system to be interconnected, DME's distribution system at the specified proposed location(s), and environmental characteristics of the Denton County area. Such studies will also determine whether the electric interconnection can be made consistent with safe and reliable operation of DME's distribution system. The cost of such analysis will be the responsibility of the IWG Customer. A cost estimate will be provided and agreed to by the IWG Customer prior to DME or the City performing the studies. SYSTEM MODIFICATIONS 53 The IWG Customer will be required to install, operate, and maintain in good order and repair, and without cost to DME, all facilities required by DME for the safe operation of the IWG system in parallel with DME's electric system. The IWG Customer's IWG system shall be installed, operated, and maintained by the IWG Customer at all times in conformity with good electrical practice and shall comply with the National Electric Code, the National Electric Safety Code, any applicable local codes and any applicable DME service standards included in the DME Agreement for Interconnection and Parallel Operation of Independent Wholesale Generation Any modifications or additions to DME's electrical system caused by the addition of the Customer's IWG system will be solely at the IWG Customer's expense. However, the IWG Customer will not acquire any ownership in these facilities. The modifications and additions may include, but are not restricted to, the upgrading of transformer insulation levels and lightening arrester ratings, the replacement of circuit breakers due to increased fault current levels, additional protective relaying and any additional metering. Further, DME may require that a communications channel(s) be installed at the IWG Customer's expense as part of the relay protection, remote control, remote metering, SCADA telemetry, and /or direct voice contact between DME and the IWG Customer. RATE The IWG Customer shall be subject to special contract arrangements and the rates charges to the Customer may consist of a minimum monthly Facility Charge plus a monthly distribution charge plus a monthly distribution line loss charge. These charges shall be calculated as follows: Monthly Facility Charge: The IWG Customer shall pay DME a monthly facility charge sufficient to compensate DME for its investment in special facilities dedicated exclusively to providing the IWG Customer service and /or that are necessary to ensure that the quality of service provided to other customers is not adversely affected pursuant to the requirements of the SYSTEM MODIFICATION provisions set forth above. The minimum monthly facility charge shall be $65.55. Distribution Delivery Charge: The IWG Customer shall pay DME a monthly distribution delivery charge equal to $2.06 times the IWG Customer's delivery demand. The IWG Customer's delivery demand shall be the greatest of the IWG Customer's maximum 15 minute net capacity output as measured at the IWG Customer's IWG site, the minimum billing kW shall be as established in the DME Agreement for Interconnection and Parallel Operation of Independent Wholesale Generation, or 1,500 kW. W Distribution Line Loss Charge: The IWG Customer shall pay DME a monthly distribution line loss charge equal to the applicable monthly Energy Cost Adjustment (ECA) charge (see schedule ECA) times monthly energy losses. Monthly energy losses shall be calculated as the metered monthly kilowatt -hour output of the IWG Customer's IWG generating unit(s) as measured at the IWG Customer's IWG site times five (5.0) percent. Generator Auxiliary Load Standby Charge: The IWG Customer shall pay the DME General Service Large rate for any electric service used by the IWG Customer to serve generator auxiliary load as a result of demand and energy requirements placed upon DME resulting from planned or forced outage of the IWG Customer's IWG generation unit(s). Electric Service to Structures and Other Facilities Other than Generator Auxiliary Load: All charges, character of service, and terms and conditions of the applicable City of Denton electric rate schedule(s) under which the IWG Customer receives DME electric service for structures or other facilities not specifically supplying auxiliary service directly to its generating unit(s) shall apply except as expressly altered by this Rider. a SCHEDULE CGR COMMERCIAL RENEWABLE ENERGY SERVICE RIDER (Effective 10101115) This Rider defines the manner by which commercial customers may purchase predetermined 1000 kWh blocks of energy or 100% of actual energy consumption from renewable resources by substituting the Renewable Cost Adjustment Charge (see Schedule RCA) in lieu of the Energy Cost Adjustment (see Schedule ECA) specified in their applicable rate Schedule. APPLICATION This Rider is applicable to any non - residential Customer receiving service under rate schedules GSS, GSM, GSL, G1, TGS, or WK at one point of delivery and measured through one meter. This Rider is not applicable to resale service in any event, or to temporary, standby, or supplementary service. In light of additional costs associated with the Commercial Renewable Energy Service Rider and to mitigate potential risk to ratepayers, any participant in the Distributed Commercial Renewable Energy Service Rider must be, at the time this rider is applied for and continuing while such rider is in effect, a customer in good standing of all Denton Municipal Utilities, including Solid Waste services. Unless legal review procedures have been invoked in good faith regarding the obligation, a customer in good standing for the purpose of this Rate Rider is defined as a customer not owing any unpaid utility or solid waste debt obligation that is over forty -five (45) days past due to the City of Denton, Texas during the previous 12 months. NET MONTHLY RATE A customer eligible for service under this Rider may elect to purchase renewable energy at the Renewable Cost Adjustment Charge, determined in accordance with Schedule RCA. Said customer may elect to purchase 1000 kWh blocks of energy at the RCA rate, with the remainder of the customer's energy use charged at the ECA rate or to purchase all energy used at the RCA rate. All other charges contained in the customer's applicable rate Schedule shall continue to apply, as specified in said Schedule. Said customer's energy charge shall be calculated as follows. Either: Total Energy Charge = [(Y x 1000 kWh) x RCA] + { [(Total Energy Used) - (Y x 1000 kWh)] x ECA} Where: Customer has elected to purchase a portion of its energy consumption at the RCA and: Y= Number of 1000 kWh RCA blocks elected by said customer 0 Or: Total Energy Charge = Total Energy Used x RCA Where: Customer has elected to purchase its entire energy consumption at the RCA TERMS OF SERVICE To exercise the energy supply choice made available by this Rider, an eligible customer must enter into a separate written agreement with Denton Municipal Electric that specifies either a specific number of 1000 kWh energy blocks to be purchased at the Renewable Cost Adjustment Charge or specifies that 100% of said customer's monthly energy consumption is to be purchased at the Renewable Cost Adjustment Charge. The minimum term for a Schedule CGR agreement shall be 12 months. This Rider replaces the Energy Cost Adjustment Charge for participating customers. 57 SCHEDULE SFR SPECIAL FACILITIES RIDER (Effective 10101115) (1) All service shall be offered from available facilities. If a customer service characteristic requires facilities and devices not normally and readily available at the location which the customer requests service, the total cost incurred by DME for all facilities installed, buried, relocated and /or removed shall be the responsibility of the Customer and subject to a special contract entered into between DME and the Customer. This contract shall be signed by both parties prior to the DME providing service to the Customer. (2) Billing for services beyond the delivery of electricity, utilized by the Customer, may be subject to a special contract entered into between DME and the Customer. This contract shall be signed by both parties prior to DME providing service to Customer. W SCHEDULE DFR DARK FIBER (Effective 10101115) APPLICATION Service is available to any customer to the extent there is any excess capacity respecting Denton Municipal Electric's fiber optic cable facilities, within the area served by Denton Municipal Electric's ( "DME ") distribution system, for the purpose of point -to -point dark fiber optic cable connectivity intended for the transport of high -speed data. MONTHLY RATE (1) Fiber Mileage Charge $400 per fiber pair /mile, per month; and (2) Building Presence Charge $180 per location, per month Total Fiber Rate $580 per fiber pair /mile, per month, per location RATE GUIDELINES (1) The minimum quantity of fiber to be leased shall be one (1) fiber pair. All fiber pairs furnished to the customer shall consist of two (2) fibers. (2) The minimum Fiber Mileage Charge is for one (1) fiber pair /mile. (3) After the first mile, Fiber Mileage Charge will be charged in increments of the nearest one -tenth (0.1) mile. (4) All costs associated with ingress to a customer's location from the DME right -of -way shall be billed directly to the customer, and are not included in the Fiber Mileage Charge and the Building Presence Charge and shall be paid to Denton Municipal Electric within fifteen (15) calendar days from the date of issuance of the bill. (5) The Fiber Mileage Charge calculation is based upon the actual fiber pair distance along the DME distribution system rights -of -way. The Fiber Mileage Charge is not based upon any other method of calculation. The Fiber Mileage Charge is not based upon any distance determination, such as the distance the crow flies, or from point -to- point. (6) The Fiber Mileage Charge distance shall be capped at two (2) times the direct point -to- point distance. (7) DME dark fiber by customer cannot conflict with existing private fiber and /or communications company in any specific area. (8) All costs associated for new point -to -point fiber spot networks where DME does not already have fiber installed are to be borne up -front by the customer; including installation costs, testing cost and any right -of -way or easement procurement costs. T)TS nT TNTS M Special discounts will be applied for fiber pairs to the same location, and for fiber pairs for long -term contracts in the amounts as shown in the table below. The discount applicable to a customer shall not be a cumulative total of all the discounts offered. The discount any customer is entitled to shall be the largest single discount applicable to that customer's service. Discount Type Discount Discount Type Discount Term of Lease % Number of Fibers % 5 -7 Years 30% 1 -2 Fibers /Mileage Charge 0% 8 -10 Years 45% 3 -6 Fibers/ Mileage Charge 9.7% 7 -12 Fibers /Mileage Charge 19% 12 or more Fibers /Mileage Charge 28.7% TYPE OF SERVICE The City shall furnish, install, maintain, and deliver only point -to -point dark fiber connectivity for the purpose of transporting high -speed data with a maximum loss of no more than 9.0 dB. PAYMENT Bills are due when rendered and become past due if not paid within fifteen (15) calendar days from date of issuance. TERM OF LEASE CONTRACT All dark fiber lease contracts shall be for a minimum term of five (5) years. :1 SECTION 2. The Assistant City Manager for Utilities is hereby authorized to expend funds to authorize creditsto DME customers on their electric service bills and further to authorize cash incentives for the installation of photovoltaic systems in accordance with the form and type set forth in Schedule GIP, as the installation of energy efficient upgrades is in the best interest of the City of Denton, Texas, as such will reduce energy demand and consumption, reduce the peak load of the DME's electric system, reduce emissions in the state, and promote energy conservation, which are all public purposes of the City. SECTION 3. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 4. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 5. This ordinance and the rates herein adopted shall become effective, charged, and applied to all electric services rendered by Denton Municipal Electric, and all energy usage by customers of Denton Municipal Electric effective with the first billing issued on and after October 1, 2015 ; and a copy of said rates shall be maintained on file in the Office of the City Secretary of the City of Denton, Texas. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ; CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -872, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Utilities Administration CM /ACM: Howard Martin, 349 -8232 Date: September 15, 2015 SUBJECT Consider adoption of an ordinance amending the schedule of water rates contained in Ordinance No. 2014 -287 for water service rates and water rates; amending the residential water service rate (Schedule WR); amending the commercial/industrial water service rate (Schedule WC); amending the metered water from fire hydrant rate (Schedule WFH); amending the wholesale treated water service rate to the Upper Trinity Regional Water District (Schedule WW); amending the wholesale raw water service rate to Upper Trinity Regional Water District (Schedule WRW); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND The proposed approximate 5% rate increase is designed to recover the cost of service for the water utility and provide a positive or break -even net income. During the budget presentations, the PUB reviewed the Water Utility budget and the proposed rate changes that could be implemented to support the proposed FY 2015 -2016 budget and FY 2016 -2020 CIP. As part of the Water budget discussions, the Water department staff recommended and received PUB approval for an approximate 5% rate revenue increase. The increase includes funding to support aging water infrastructure and reserve requirements. The rate increase takes steps to align rates among customer classes with recommendations of the Cost of Service model and to encourage conservation. The average residential customer using 9,200 gallons would incur the following monthly charge. Current Proposed Increase $48.81 $51.96 $3.15 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Proposed FY 2015 -2016 Utilities budgets and FY 2016 -2020 CIP's were presented to the PUB during May through July 2015. The rate ordinance was approved by the PUB on July 27, 2015 by a vote of 4 -0. The budgets, including rate ordinances, were presented to the City Council for review on August 6, 2015. This City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -872, Version: 1 ordinance is scheduled for adoption on September 15, 2015. SUMMARY Based on normal volumes, the proposed increase will generate the rate revenue needed to meet budget requirements. The proposed rate increase was designed to support cost of service and to encourage conservation. FISCAL SUMMARY The proposed rate increase will provide the revenues necessary to cover the cost of service to customers. RECOMMENDATION Staff recommends approval of the ordinance, with an effective date of October 1, 2015. EXHIBITS 1. Proposed FY 2015 -2016 Water Rate Ordinance Respectfully submitted: Howard Martin Assistant City Manager - Utilities Prepared by: Kenneth Banks. Director of Environmental Services and Utility Budgets City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 ORDINANCE NO. 2015- AN ORDINANCE AMENDING THE SCHEDULE OF WATER RATES CONTAINED IN ORDINANCE NO. 2014 -287 FOR WATER SERVICE RATES AND WATER RATES; AMENDING THE RESIDENTIAL WATER SERVICE RATE (SCHEDULE WR); AMENDING THE COMMERCIAL /INDUSTRIAL WATER SERVICE RATE (SCHEDULE WC); AMENDING THE METERED WATER FROM FIRE HYDRANT RATE (SCHEDULE WFH); AMENDING THE WHOLESALE TREATED WATER SERVICE RATE TO THE UPPER TRINITY REGIONAL WATER DISTRICT (SCHEDULE WW); AMENDING THE WHOLESALE RAW WATER SERVICE RATE TO UPPER TRINITY REGIONAL WATER DISTRICT (SCHEDULE WRW); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. SECTION 1. The Rate Schedules for water service as provided for in Chapter 26 of the Code of Ordinances, are amended to read as follows: WR Residential Water Service WC Commercial/Industrial Water Service Rate WFH Metered Water From Fire Hydrant PAGE 2 6 9 WW Wholesale Treated Water Service to Upper Trinity Regional Water District 10 WRW Wholesale Raw Water Service to Upper Trinity Regional Water District 12 WCL Wholesale Raw Water Pass - Through to Upper Trinity Regional Water District 13 from Lake Chapman into Lake Lewisville Water Tap and Meter Fees 14 Fire Hydrant Installation 16 Water Laboratory Testing Fees 17 Special Facilities Rider 18 Special Conditions Rider 18 SCHEDULE WR RESIDENTIAL WATER SERVICE ^ Effective 10 /01 / 1 ( 5) APPLICATtON Applicable for single- family residential service, and individually- metered apartments, mobile homes, or multi- family facilities with less than four units, with wastewater service within the corporate limits of the City of Denton, Texas. (WR) Applicable for single - family residential service, and individually- metered apartments, mobile homes, or multi -family facilities with less than four units outside the corporate limits of the City of Denton, Texas with or without wastewater service. (WRO) Applicable where the metered water is used for domestic purposes and is not returned to the wastewater system for collection and treatment. (WRN) Applicable where the metered water is used for landscape irrigation purposes and is not returned to the wastewater system for collection and treatment. (WRI) Applicable where metered water is outside the corporate limits of the City of Denton, Texas and is used for landscape irrigation purposes and is not returned to the wastewater system for collection and treatment. (WRIO) Not applicable to resale, temporary, standby, or supplementary service except in conjunction with applicable rider. MONTHLY RATE ()YR) — RESIDENTIAL WATER SERVICE; AND MONTHLY RATE (WRN) — METERED WATER NOT RETURNED TO WASTEWATER„ SYSTI'M f'O[Z (:'OlyLE(: "TIO�N AND TRFA "1 MF'NJ' (1) Facility Charge 3/4 inch Meter 1 inch Meter 1 -1 /2 inch Meter 2 inch Meter (2) Volume Charge RATE BLOCK PER 3,0 DAYS 0- 15,000 gals 15,001- 30,000 gals 30,001 - 50,000 gals Over 50,000 gals Per Bill $14.70 $18.90 $24.75 $31.30 Rate Per 1,000 Gallons WINTER Billing months of NOV. through APRIL $4.05 $4.05 $4.05 $4.05 SUMMER Billing months of MAY throu h OCT. $4.05 $5.85 $7.85 $10.35 MONTI-I LY RA"I'I't-!�Q) -- WATE'R SFl�Vj(,,'FOUTSIDF ("ORPOIZATF f,IMI"I's MONTHLY RATE (1) Facility Charge Per Bill 3/4 inch Meter $16.90 1 inch Meter $21.75 1-1/2 inch Meter $28.45 2 inch Meter $36.00 (2) Volume Charge Rate Per 1,000 Gallons RATE BLOCK PER 30 DAYS, WINTER SUMMER Billing months Billing months NOV through APRIL MAY through OCT 0-15,000 gals $4.65 $4.65 15,001-30,000 gals $4.65 $6.70 30,001-50,000 gals $4.65 $9.05 Over 50,000 gals $4.65 $11.90 MONTHLY ,RATES (WRI) — METERED WATER SERVICE FOR I RRI GATION MONTHLY RATE (1) Facility Charge Per Bill 3/4 inch Meter $14.70 1 inch Meter $18.90 1-1/2 inch Meter $24.75 2 inch Meter $31.30 (2) Volume Charge Rate Per 1,000 Gallons RATE BLOCK 111�;JZ 30 DAYS WINTER SUMMER Billing months Billing months NOV throujzh APRIL MAY through OCT 0- 15,000 gals $4.05 $5.85 15,001-30,000 gals $4.05 $7.85 Over 30,000 gals $4.05 $10.35 No M0 NT1'lLY RA'r S (_`'a'wl (:)) --- 1 1 1 1 1) WA' " lil 6 1111111- MONTHLY RA Facility Charge Per Bill 3/4 inch Meter $16.90 1 inch Meter $21.75 1 -1/2 inch Meter $28.45 2 inch Meter $36.00 (2) Volume Charge Rate Per 1,000 Gallons RATE BLOCK PER 30 DAYS WINTER SUMMER 0- 15,000 gals 15,001- 30,000 gals Over 30,000 gals MINIMUM BILLING Facility Charge PAYMENT Billing months NOV through APRIL $4.65 $4.65 $4.65 Billing months MAY throuizh OCT $6.70 $9.05 $11.90 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. VOLUME CHARGE Billing for the water consumption shall be based on the gallon consumption during the billing period, Formula: Gallons in rate block x rate per 1,000 gal. in rate block 1,000 gallons IN RETAIL WATER RATFS UNDER DROUGHT CONTINGENCY PLAN CONDITIONS —L —11— UNDER - ..................... ORDINANCE NO. 2014-109. Under Stage 2 drought conditions, residential customers shall be charged a 10% rate increase for water usage greater than 15,000 gallons per account per thirty (30) days. Under Stage 3 drought conditions, residential customers shall be charged a 20% rate increase for water usage greater than 15,000 gallons per account per thirty (30) days. I SCHEDULE WC COMMERCIA 11NQI -1S I I RIAL 'vX i R I" VIC;p'_RATE (Effective 10101115) APPLICATION Applicable to all commercial and industrial users, or other water users not otherwise classified under this ordinance, for all water provided at one point of delivery and measured through one meter. (WC) Applicable for all commercial and industrial users or other users not otherwise classified under this ordinance outside of the corporate limits of the City of Denton for all water service provided at one point of delivery and measured through one meter, with or without wastewater service. (WCO) Applicable where the metered water is used for commercial purposes and is not returned to the wastewater system for collection and treatment. (WCN) Applicable where metered water is used for landscape irrigation purposes and is not returned to the wastewater system for collection and treatment. (WCI) Applicable where metered water is outside the corporate limits of the City of Denton, Texas and is used for landscape irrigation purposes and is not returned to the wastewater system for collection and treatment. (WCIO) Not applicable to resale service in any event, nor to temporary, standby, or supplementary service except in conjunction with applicable rider. MONTHLY RATE (WC) and (WCN) (1) Facility Charge 3/4 inch Meter 1 inch Meter 1 -1/2 inch Meter 2 inch Meter 3 inch Meter 4 inch Meter 6 inch Meter 8 inch Meter 10 inch Meter Per Bill $22.60 $29.40 $35.20 $46.85 $100.40 $199.10 $272.10 $381.25 $545.70 (2) Volume Charge $4.25 per 1,000 gallons 10 MONTHLY RATEWCwO — OUTSIDE CORPOIITTE LIMITS (1) Facility Charge 3/4 inch Meter 1 inch Meter 1-1/2 inch Meter 2 inch Meter 3 inch Meter 4 inch Meter 6 inch Meter 8 inch Meter 10 inch Meter (2) Volume Charge M) "l l I LY l r l E W "I1 w- KRIGA'l`IO (1) Facility Charge 3/4 inch Meter 1 inch Meter 1 -1/2 inch Meter 2 inch Meter 3 inch Meter 4 inch Meter 6 inch Meter 8 inch Meter 10 inch Meter (2) Volume Charge Per Bill $26.00 $33.80 $40.50 $53.90 $115.45 $228.95 $312.90 $438.45 $627.55 $4.90 per 1,000 gallons Per Bill $22.60 $29.40 $35.20 $46.85 $100.40 $199.10 $272.10 $381.25 $545.70 Rate Per 1,000 Gallons WINTER Billing months of NOV. through APRIL $4.25 MONTHLY RATE 4 O) - IRRIGATION (1) Facility Charge Per Bill 3/4 inch Meter $26.00 1 inch Meter $33.80 1 -1/2 inch Meter $40.50 2 inch Meter $53.90 3 inch Meter $115.45 4 inch Meter $228.95 6 inch Meter $312.90 8 inch Meter $438.45 10 inch Meter $627.55 0 SUMMER Billing months of MAY through OCT. $5.85 (2) Volume Charge MINIMUM, BILLING, Facility Charge PAYMENT lZat ...I'cI I,.Jlt1(l (Ih1VIo 11 S "I 11?R Billing months of NOV. through APRIL $4.90 SUMMER Billing months of MAY through OCT. $6.75 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. VOLUME CHARGE Billing for the water consumption shall be based on the consumption during the billing period. Formula: Gallons consumption x Rate per 1,000 gallons 1,000 (�� �1.. . . .�.. _ ��" ..' " MW `1W N "I�I,:[a 1�",`I I I$ TES [ „7"�'�1.I I�. 1�1��)l1(�II1 �;� �I']l(r] 1"�1C "Y I _.... CONDITIONS — ORDINANCE NO. 2014 -109. Under Stage 2 drought conditions, Commercial /Industrial customers shall be charged a 10% surcharge penalty for water usage above 80% of prior billing volumes per account per thirty (30) days. Under Stage 3 drought conditions, Commercial /Industrial customers shall be charged a 20% surcharge penalty for water usage above 70% of prior billing volumes per account per thirty (30) days. X SCHEDULE WFH METERED WATER FROM FIRE I „IYQ[�ANT (Effective 10101115) APPLICATION Applicable for all water taken through a fire hydrant or other direct distribution line source at one location for private or commercial use not associated with fire fighting. Customers must complete, sign, and agree to all terms and conditions stated in the "Fire Hydrant Meter Use Agreement.” DEPOSIT $1,100 per meter User shall place a deposit each time a City's hydrant meter(s) is requested. The deposit will be returned when meter is returned and final bill is paid. NET RATE Volume Charge $5.20 per 1,000 gallons Monthly volume shall be computed by subtracting the beginning meter reading from the ending meter reading divided by 1,000, and multiplied times the volume charge, upon the monthly return of the meter to the Water Department for reading. Per the "Fire Hydrant Meter Use Agreement ", failure by the Customer to return the meter to water utilities by the 3rd day of each month for reading, results in acceptance by the Customer to pay a monthly billing equal to 100,000 gallons of water usage for the month. Facility Charge $106.40 per bill a-11105 uW -0411 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. CO 'II�j(j 1 /JN1)1,1STRIAL WATER RAN'T'S UNDER DROUGHT CONTINGENCY GENCY PLAN CONDITIONS — ORDINANCE NO. 2014-109, Under Stage 2 and Stage 3 drought conditions, use of water from fire hydrants limited to fire fighting, essential distribution system maintenance, and related activities. All other water use from fire hydrants will be by special permit only. I SCHEDULE WW WHOLESALE TREATED WATER SERVICE O ' I:�lAlf WAIN "1:1 lI 1 Cl��,.1. t J 111 11Z R l H,fy REG (Effective 10101115) APPLICATION Applicable to all wholesale treated water sales from the City of Denton, Texas to the Upper Trinity Regional Water District (UTRWD) Not applicable for temporary, standby, or supplementary service. MONTHLY CHARGES The monthly charge for service shall be expressed as a facility charge, a volume price per 1,000 gallons and a demand price per million gallons per day (MGD) of demand. (WW2/WW3) (1) Facility Charge (2) Water Volume Rate (WD2/WD3) (3) Subscribed Demand Rate *Full Payment of Annual Water Demand Adjustments: $264.20 per bill $0.55 per 1,000 gallons $611,204 per MGD (Annual) 12 (Paid Monthly) As determined in the last month of each fiscal year (September), if any outstanding or unpaid annual water demand adjustment charges exist, they shall be included in their entirety on the monthly billing for the following month of October. Water demand adjustment charges shall be billed and payable in full, in accordance with the bill payment delinquency provisions provided for below. MINIMUM BILLING The minimum monthly billing shall be the sum of the monthly facility charge plus the monthly subscribed demand rate charge. WATER DI: MAI II The demand will be billed on a monthly basis at the Water Demand Rate for the subscribed MGD water demand level. Annual water demand charges will be retroactively adjusted up beginning in June for each water year, if anytime during the fiscal year the actual peak demand required, as established by the highest rate of flow controller setting for any one day during the fiscal year, is greater than the peak demand subscribed during the fiscal year. M BILL PAYMENT DELINQUENCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within twenty (20) calendar days of the date a bill for service is rendered. There shall be a ten (10 %) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. 11 SCHEDULE WRW WHOLESALE RAW WATER SERVICE TO 1,1PP R "lZ1l l'I "Y R GIONAL �, 1l ^Il DIS`i "ZICT ..._ (Effective 10101115) APPLICATION Applicable to all raw water sales from the City of Denton, Texas to the Upper Trinity Regional Water District (UTRWD), per the Interim Sale of Wholesale Raw Water Contract MONTHLY CHARGES The monthly charge for service shall be expressed as a volume price per 1,000 gallons. Volume Charge: $0.7085 per 1,000 gallons PAYMENT Denton shall render bills by the tenth (10th) day of each month. Bills shall be due and payable within twenty (20) calendar days of the date a bill is rendered. BILL PAYMENT DELINQUENCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within twenty (20) calendar days of the date a bill for service is rendered. There shall be a ten (10 %) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. SCHEDULE WCL WHOLESALE RAW WATER PASS - THROUGH TO UPPER TRINITY REGIONAL WATER DISTRICT FROM LAKE CHAPMAN INTO LAKE LEWISVILLE (Effective 10101115) APPLICATION Applicable to all pass - through raw water sent from Lake Chapman into Lake Lewisville by the Upper Trinity Regional Water District ( UTRWD) per the Cooper Reservoir Project Contract, as well as, all Lake Chapman water reclaimed for reuse if discharged into and subsequently withdrawn from Lewisville Lake by UTRWD or Lewisville pursuant to a reuse permit or other appropriate regulatory authorization. MONTHLY CHARGES The monthly charge for service shall be expressed as a volume price per 1,000 gallons, Volume Charge: $0.0259 per 1,000 gallons PAYMENT Denton shall render bills monthly. Bills shall be due and payable within twenty (20) calendar days of the date a bill for service is rendered. BILL PAYMENT DELINQUENCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within twenty (20) calendar days of the date a bill for service is rendered. There shall be a ten (10 %) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. W WATER TAP AND METER FEES (Effective 10101115) APPLICATION This schedule applies to the installation, removal, or relocation of water taps and meters by the City of Denton Utility Department at the request of a person, firm, association or corporation. TAP AND METER FEES Any person, association of persons, or corporation that requests that a water main tap, water meter or water meter loop, be removed, installed, or relocated by the Utility Department shall pay in advance to the Utility Department the following applicable fees: WATER TAPS WITH METER Tap Meter Paved Street Unpaved Street 1 inch 5/8 inch x 3/4 inch $2,405.00 $1,605.00 1 inch 3/4 inch x 3/4 inch $2,445.00 $1,645.00 1 inch 1 inch $2,475.00 $1,675.00 2 inch 1 -1/2 inch $3,070.00 $2,070.00 2 inch 2 inch $3,080.00 $2,080.00 WATER Ml' "l`l :R. FEES Size of Meter 5/8 inch x 3/4 inch $305.00 3/4 inch x 3/4 inch $345.00 1 inch $375.00 1 -1/2 inch $670.00 2 inch $680.00 WATER METER RELOCATIONS Size of Meter Relocation of 10 Feet or Less 3/4 inch $285.00 1 inch $285.00 1 -1/2 inch $340.00 2 inch $390.00 IE WATER LINE TAPS Size of Tap Paved Street Unpaved Street 1 inch $2,100.00 $1,300.00 2 inch $2,400.00 $1,400.00 4 inch $3,600.00 $2,100.00 6 inch $3,800.00 $2,200.00 8 inch $4,800.00 $3,100.00 12 inch $5,500.00 $4,000.00 f 1,IlS FOR INSTALLATIONS NOS° ° LIS I ED For the installation of a tap, loop or meter for which a fee is not specified, the requestor shall pay in advance a 50% deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20 %. Upon completion of the installation, the applicant shall be billed at actual cost, as determined by the Utility Department, plus a 20% administrative charge. The installation charges may be waived by the Utility Department for a request to install taps exclusively dedicated to fire sprinkler systems. M FIRE HYDRANT INSTALLATION (Effective 10101115) APPLICATION This schedule applies to the installation, removal, or relocation of fire hydrants by the City of Denton Utility Department at the request of a person, firm, association or corporation. FIRF 11'�1)1�..�N INSTALLATION 1,"i E Any person, association of persons, or corporation that requests that a fire hydrant be removed, installed, or relocated by the Utility Department shall pay in advance to the Utility Department the following applicable fees: Fire Hydrant Installation Paved Street Iii !�Ivgcl: �"S'.trcccl Installation Fee $6,200.00 $4,300M FEES FOR INSTALLATIONS LATIONS NOTmLISTED For the installation of a fire hydrant for which a fee is not specified, the requestor shall pay in advance a 50% deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20 %. Upon completion of the installation, the applicant shall be billed at actual cost, as determined by the Utility Department, plus a 20% administrative fee. WATER LABORATORY TESTING FEES (Effective 10 101 / 15 ) APPLICATION Applicable to all customers and entities requesting testing and analysis services from the City of Denton Water /Wastewater Laboratory Fee Description Fee, Per Test Colilert (P /A), (Total Coliform, E. coli) $20.00 Colilert Quantitray (MPN), (Total Coliform, E. coli) $25.00 Colilert Quantitray (MPN), (Fecal Coliform) $25.00 Heterotrophic Plate Counts (HPC) $25.00 Records Search — per hour $25.00 /hour The testing and analysis fees are established to recover the cost of testing water and wastewater samples. MINIMUM BILLING $20.00 - Testing $25.00 - Records Search PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. 17 SPECIAL FACI1,11"I I�.S RIDER (Effective 10101115) All service shall be offered from available facilities. If a Customer service request for a special or unusual service not otherwise provided for by the water rate ordinance, and/or requires facilities or devices which are not normally and readily available at the location at which the Customer requests the service, then the City shall provide the service subject to the requirements of paragraph 2 of this Rider. The total cost of all facilities required to meet the Customer's special requirements, which are incurred by the City in connection with rendering the service shall be subject to a special contract entered into between the Water Utility Department and the Customer. This contract shall be signed by both parties prior to the City providing the requested service to the Customer. SPECIAL CON INTIONS RIDER (Effective 10101115) If a special condition or circumstance exists not otherwise provided for by the water rate ordinance, then the City shall have the authority to provide for the special condition subject to the requirements of paragraph 2 of this Rider. Any billing adjustments in connection with any special condition or circumstance shall be at the discretion of the Director of Water Utilities or his designee. SECTION 2. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent or in conflict with the terms of provisions contained in the amended schedule of rates hereby enacted by this ordinance, are hereby repealed to the extent of any such conflict. SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION, 4. The Schedule of Rates herein adopted shall be effective, charged and applied to all water consumption occurring on and after October 1, 2015; and a copy of said rates, fees, and charges shall be maintained on file in the Office of the City Secretary of Denton, Texas, PASSED AND APPROVED this the day of _ w _ ..... ......... ........ .._._ —._ 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY IIn APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY 7" Y-L' I M ........... _. CHRIS WATTS, MAYOR 19 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -873, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Utilities Administration CM /ACM: Howard Martin, 349 -8232 Date: September 15, 2015 SUBJECT Consider adoption of an ordinance amending the schedule of wastewater rates contained in Ordinance No. 2014 -288; providing for an amendment in the rates for residential wastewater service (Schedule SR); amending the mobile home park wastewater service (Schedule SMH); amending the commercial and industrial wastewater service (Schedule SC); amending the commercial/industrial wastewater service which measures with dedicated water meters (sub- meters) (Schedule SCD); amending the commercial/industrial wastewater service which measures with dedicated water meters (sub- meters) (Schedule SCS); amending the equipment services facilities and restaurant & food service establishments wastewater service (Schedule SEE); amending the metered wastewater inside and outside corporate limits (Schedule SM); amending the sale of treated wastewater effluent (Schedule SGE); amending the treated effluent wastewater tap fees (Schedule STE); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND During the budget presentations, the Public Utilities Board ( "PUB ") reviewed the Wastewater Utility budget and the proposed rate changes that could be implemented to support the proposed FY 2015 -2016 budget and FY 2016 -2020 CIP. As part of the Wastewater budget discussions, Wastewater department staff recommended and received PUB direction and approval for an approximate 2% rate increase, which included steps to align rates among customer classes with recommendations of the Cost of Service model. The average residential customer using 6,000 gallons would incur the following monthly charge: Current Proposed Increase $34.05 $34.95 $0.90 PRIOR ACTION/REVIEW Proposed FY 2015 -2016 Utilities budgets and FY 2016 -2020 CIP's were presented to the PUB during May through July, 2015. This rate ordinance was approved by the PUB on July 27, 2015 by a vote of 4 -0. The budgets, including draft rate ordinances, were presented to the City Council for review on August 6, 2015. This City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -873, Version: 1 ordinance is scheduled for adoption on September 15, 2015. SUMMARY The proposed rate revenue increases include steps to align the rates with the recommendations of the Cost of Service model. Based on normal volumes, the proposed increases will generate the rate revenue needed to meet budget requirements. FISCAL SUMMARY The proposed rate increase will provide the revenues necessary to cover the cost of service to customers. RECOMMENDATION Staff recommends approval of the proposed ordinance, with an effective date of October 1, 2015. FYHIRITC 1. Proposed FY 2015 -2016 Wastewater Rate Ordinance Respectfully submitted: Howard Martin Assistant City Manager/Utilities Prepared by: Kenneth Banks. Director of Environmental Services and Utility Budgets City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 ORDINANCE NO. 2015- AN ORDINANCE AMENDING THE SCHEDULE OF WASTEWATER RATES CONTAINED IN ORDINANCE NO. 2014 -288; PROVIDING FOR AN AMENDMENT IN THE RATES FOR RESIDENTIAL WASTEWATER SERVICE (SCHEDULE SR); AMENDING THE MOBILE HOME PARK WASTEWATER SERVICE (SCHEDULE SMH); AMENDING THE COMMERCIAL AND INDUSTRIAL WASTEWATER SERVICE (SCHEDULE SC); AMENDING THE COMMERCIAL /INDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB- METERS) (SCHEDULE SCD); AMENDING THE COMMERCIAL /INDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB- METERS) (SCHEDULE SCS), , AMENDING THE EQUIPMENT SERVICES FACILITIES AND RESTAURANT & FOOD SERVICE ESTABLISHMENTS WASTEWATER SERVICE (SCHEDULE SEE); AMENDING THE METERED WASTEWATER INSIDE AND OUTSIDE CORPORATE LIMITS (SCHEDULE SM); AMENDING THE SALE OF TREATED WASTEWATER EFFLUENT (SCHEDULE SGE); AMENDING THE TREATED EFFLUENT WASTEWATER TAP FEES (SCHEDULE STE); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Rate Schedules for wastewater service as provided for in Chapter 26 of the Code of Ordinances, are amended to read as follows: SR Residential Wastewater Service 3 SMH Mobile Home Park Wastewater Service SC Commercial and Industrial Wastewater Service C E SCD Commercial /Industrial Wastewater Service Which Measures With 13 Dedicated Water Meters (Sub - meters); Water For Wastewater Billing SCS Commercial /Industrial Wastewater Service Which Measures With 15 Dedicated Water Meters (Sub- meters); Water Excluded From Wastewater Billing SCH Septage & Chemical Toilet Disposal at the Pecan Creek Water 17 Reclamation Plant Septage Transfer Station SEE Equipment Services Facilities and Restaurants & Food 19 Service Establishments Wastewater Service SM Metered Wastewater Inside and Outside Corporate Limits 22 1 SGE Sale of Treated Wastewater Effluent SSC Wholesale Wastewater Treatment Service for a Governmental Agency, Division or Subdivision CWM DYNO Dirt Products GBL Grass, Brush, and Leaves ST Wastewater Tap and Manhole Fees STE Treated Effluent Wastewater Tap Fees OSSF On -Site Sewage Facility Permit Fees SWP Collection and Transportation Services Permit SD Storm Drainage Fees SDI Stormwater Reinspection Fee Special Facilities Rider Special Conditions Rider 24 26 28 30 31 32 33 34 39 41 42 42 SCHEDULE SR RESIDENTIAL WASTEWATER SERVICE (Effective 10101115) APPLICATION Applicable for single - family residential service, and individually metered apartments or mobile homes or multi - family facilities with less than four (4) units. Also applicable for wastewater service without City of Denton, Texas water service. Not applicable for sub - billing or other utility billing by service user in any event. MON' ul m` f�A'1 "F�"S' - W1l11_Im CITY mOF IN"N ON " ml 1 A SEIZ V1(m 1 (1) Facility Charge $10.95 /bill (2) Volume Charge $4.00/1,000 gallons effluent MONTHLY RATES u( 8 n) OUTSIDE CORPORATE H"'[1 CITY OF DENTON WATER SERVICE (1) Facility Charge $12.60/bill (2) Volume Charge $4.60/1,000 gallons effluent Except as otherwise stated in this schedule, wastewater volume is calculated based upon a current winter Average Daily Usage, established annually during the previous billing months of December through February, and based upon 100% of actual water consumption during those months. The average daily usage may be calculated using as few as two months. The Average Daily Usage thus calculated establishes the wastewater volume charge for each subsequent month, through the following February. The calculated wastewater billed volumes will be capped at a maximum of 18,000 gallons/bill. For customers without an established winter Average Daily Usage water consumption billing history derived from the preceding billing months of December through February, wastewater volume for each billing month through the following February shall be calculated at 100% of 6,000 gallons. MINIMUM BILLING - WITH CITY OF DENTON WATER SERVICE Facility Charge VOLUME CHARGE - WITH CITY OF DENTON WATER SERVICE With a current Average Daily Usage, billings through the following February shall be based on the average daily usage calculated using the following formula. Current Average Daily Usage x Rate per 1,000 gallons 1,000 I For customers without an established current Average Daily Usage, billings shall be based on 100% of 6,000 gallons. 6,000 Gallons x Rate per 1,000 gallons 1,000 PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. ONTI11 -Y IAA'] I aw l l ilS 1 % i'f "1..OUT CITY OF I' [,N ]"ON WATER gal "ImCl (1) Facility Charge (2) Volume Charge SRNI Inside Corporate Limits $10.95/bill $4.00/1,000 gals SRNO Outside Corporate T .imitc $12.60/bill $4.60/1,000 gals The customer shall pay a minimum Volume Charge on the established billable volume of five thousand (5,000) gallons per month. MINIMUM BILLING - WITHOUT CITY OF DENTON WATER SERVICE_ The Facility Charge plus five thousand (5,000) gallons of wastewater. VOLUME CHAR(iF - WITHOUT CITY OF DENTON WATER SERVICE IICE The billing for the wastewater volume shall be based on the minimum wastewater volume (5,000 gallons) during the billing period. Minimum Wastewater Volume x Rate per 1,000 gallons 1,000 Wastewater volumes will be capped at a maximum of 18,000 gallonsibill. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. 0 SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. SCHEDULE SMH MOBILE HOME PARK WASTEWA 1Iµ �, ,SERVICE (Effective 10101115) APPLICATION Applicable for mobile home parks that are master water metered to provide residential wastewater service. Wastewater service is billed based on the Customer's winter average water usage. Also applicable for wastewater service without City of Denton water service, in the event the mobile home park does not have a master meter for wastewater. Wastewater service is billed on the average residential wastewater volume per customer. Not applicable for sub - billing or other utility billing by service user in any event. MONTHLY RATE (SMH) - rWITH CITY OF DENTON WATER SERVICE (1) Facility Charge $26.20/bill (2) Volume Charge $4.00/1,000 gallons effluent MONTHLY RATE (SMI10) OUTSIDE CORPORATE LIMITS WITI I CITY OF DENTON WATER SERVICE (1) Facility Charge $30.15/bill (2) Volume Charge $4.60/1,000 gallons effluent Except as otherwise stated in this schedule, wastewater volume is calculated based upon a current winter Average Daily Usage, established annually during the previous billing months of December through February, and based upon 100% of actual water consumption during those months. The average daily usage may be calculated using as few as two months. The Average Daily Usage thus calculated establishes the wastewater Volume Charge for each subsequent month, through the following February. The calculated wastewater billed volumes will be capped at a maximum of 18,000 gallons /bill. For customers without an established winter Average Daily Usage water consumption billing history derived from the preceding billing months of December through February, wastewater volume for each billing month through the following February shall be calculated at the established billable volume (5,000 gallons per month per mobile home) for mobile home park customers not receiving water service. MINIMUM BILLING WITH CITY OF DENTON WATER SERVICE Facility Charge 0 VOLUME CHARGE - WITH CITY OF DENTON WATER SERVICE With a current Average Daily Usage, billings through the following February shall be based on the average daily usage calculated using the following formula. Current Average Daily Usage x Rate per 1,000 gallons 1,000 For customers without an established winter Average Daily Usage, billings shall be based on the established billable volume of 5,000 gallons per mobile home per month. Established Billable Volume x Rate per 1,000 gallons x Number of Mobile Homes 1,000 PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. IQiN I.I ILY ltATE ( MNI /S IN'O - .WITH0(JT C1TY (.)1 Xl,N `ON WATER SEMVIC`1 (1) Facility Charge (2) Volume Charge SMNI Inside Corporate Limits $26.20/bill $4.00/1,000 gals SMNO Outside Corporate Limits $30.15 /bill $4.60/1,000 gals The Customer shall pay a minimum Volume Charge on the established billable volume of five thousand (5,000) gallons per month. MINIMUM BILLING WITHOUT C 1 Y OF DENTON WATER SERVICE The Facility Charge plus five thousand (5,000) gallons of wastewater per mobile home VOLUME (A IAR(3l -' _WITHOUT CITY OF DENTON, WATER SERVICE The billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Mini um. Wastewater Volume x Rate per 1,000 gallons x Number of Mobile Homes 1,000 PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. SCHEDULESC t= '(���,4 l� (Af, AND INQI_JSTlZ( ( ''v�. S`1 "l�''�' ITI l'lZVIQ, (Effective 10101115) REGULAR COMMERCIAL APPLICATION Applicable to all general commercial and industrial wastewater service users and to all wastewater service users not otherwise specifically classified under a specialized class wastewater rate. Also applicable to all commercial facilities not receiving metered water service from the City of Denton, including subdivisions, for apartments, or other commercial users. MON I B'LY 1- I "I ) - Wl -Vt LQ `' OF DEN"1`ON WAJJJ^ Sl RVICE (1) Facility Charge $26.20/bill (2) Volume Charge $5.0511,000 gallons effluent Billing based on ninety (95 %) percent of monthly water consumption. Plus PRETREATMENT /PROGRAM CHARGES (As Applicable) (SCA) (A) Categorical Customer $400.00/bill (SCB) (B) Non - categorical Customer $ 50.00/bill SAMPLING AND ANALYSIS CHARGES (As applicable) (A) Sampling charge per sample site (each) $60.00 (B) Analysis charge (per test) Actual cost per test (C) Violation demand sampling charge per sample site: Four -Part Grab $170.00 /each First Day of Composite Sampling $110.00 Additional Day Composite Sampling $50.00 /each 9 MONTHLY RATE (SCO) — OUTSIDE (,Q1W0 RATE LIMITS WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $30.15 /bill (2) Volume Charge $5.75/1,000 gallons effluent Billing based on ninety (95 %) percent of monthly water consumption. MINIMUM BILLING Facility Charge VOLUME „CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Water volume x .95 x Rate per 1,000 gallons 1,000 COMMERCIAL AND INDUSTRIAL SURCHARGE In addition to the above charges for commercial and industrial services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -250] B + [Su -250] S]) Where: Cu is the surcharge for customer X. Vu is the billing volume per 1000 gallons for customer X. .00843 is the conversion factor Bu is the tested BOD level for user X or 250 mg /1, whichever is greater. B is the unit cost factor for treating one pound of BOD Su is the tested TSS level for user X or 250 mg /1, whichever is greater. S is the unit cost factor for treating one pound of TSS 10 .. w � SERVICE ITI l(Q l CI Y (:)1 DI ".NTON WAT (1) Facility Charge (2) Volume Charge SCNI Inside Corporate Limits $26.20/bill SCNO Outside Corporate Limits $30.15/bill $5.0511,000 gals $5.75/1,000 gals The minimum apartment Volume Charge will be for five thousand (5,000) gallons per unit receiving wastewater service per month. Other commercial users will be billed on their estimated monthly wastewater volume. MINIMUM BILLING (1) Facility Charge plus 5,000 gallons wastewater per unit receiving wastewater service. or (2) Facility Charge plus other commercial user estimated monthly wastewater volume. VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Minimum wastewater volume x Rate per 1,000 gallons 1,000 Plus 1'RI� ;TREATMENT /1'10( -31�AN4 f'[ IAI xl `� � �; �;t; pl�c��1 (1) Categorical Customer $400/bill (2) Non - categorical Customer $50 /bill SA 11'1,,1W", AND, ANALYSIS °1 -lAIWI (A �rf)j?r�ica�ble (A) Sampling charge per sample site (each) $60.00 (B) Analysis charge (per test) Actual cost per test (C) Violation demand sampling charge per sample site: Four -Part Grab $170.00 /each First Day of Composite Sampling $110.00 Additional Day Composite Sampling $50.00 /each 11 COMMERCIAL AND INDUSTRIAL SURCHARGE In addition to the above charges for commercial and industrial services, there will be added to the net monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -250] B + [Su -250] S]) Where: Cu is the surcharge for customer X. Vu is the billing volume per 1000 gallons for customer X. .00834 is the conversion factor Bu is the tested BOD level for user X or 250 mg /1, whichever is greater. B is the unit cost factor for treating one pound BOD. Su is the tested TSS level for user X or 250 mg /1, whichever is greater. S is the unit cost factor for treating one pound of TSS. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. 12 SCHEDULESCD COMMERCIAL /INDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB- METERS), WATER FOR WAS LWA TF1� BILLING (Effective 10/01/15 Ef ) APPLICATION Applicable to all commercial and industrial wastewater service users and to all wastewater service users not otherwise classified under this ordinance whose wastewater volume is measured by a water meter which measures the water which is returned into the wastewater collection and treatment system. The SCD sub - metered wastewater volumes are billed to the Customer. Not applicable for sub - billing or other utility billing by service user in any event. MONTHLY RATE (1) Facility Charge Billing Per Bill, 3/4" Meter $26.00 1" Meter $33.80 1 -1/2" Meter $40.50 2" Meter $53.90 3" Meter $115.45 4" Meter $228,95 6" Meter $312.90 8" Meter $438.45 10" Meter $627.55 (2) Volume Charge $5.05 /1,000 gallons effluent The wastewater billing is based on one hundred (100 %) percent of the actual water volume submetered. MINIMUM BILLING Facility Charge MAWMAW0111 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. COMMERCIAL AND INDUSTRIAL SURCHARGE In addition to the above charges for services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x .00834([Bu -250] B + [Su -250] S]) Where: Cu is the surcharge for customer X. Vu is the billing volume per 1000 gallons for customer X. .00843 is the conversion factor Bu is the tested BOD level for user X or 250 mg /1, whichever is greater.. B is the unit cost factor for treating one pound of BOD. Su is the tested TSS level for user X or 250 mg/l, whichever is greater. S is the unit cost factor for treating one pound of TSS. VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Actual Water volume x Rate per 1,000 gallons 1,000 110 SCHEDULESCS COMMERCIAL /INDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB- METERS), WATER 1 :�'X 1 l 11:1_ D [,'ROM WA '1'I�W '1 I1'I1 w1111.1,ING (Effective 10101115) APPLICATION Applicable to all commercial and industrial wastewater service users and to all wastewater service users not otherwise classified under this ordinance whose wastewater volume is calculated by a water meter which measures the water which is not returned into the wastewater collection and treatment system. The SCS sub - metered wastewater volumes are consumed in the customer's processes, not returned to the wastewater system, and are therefore excluded from the customer's wastewater billing volumes. Not applicable for sub - billing or other utility billing by service user in any event. MONTHLY RATE (1) Facility Charge Billirig,PgrmBill 3/4" Meter $26.00 1" Meter $33.80 1 -1/2" Meter $40.50 2" Meter $53.90 3" Meter $115.45 4" Meter $228.95 6" Meter $312.90 8" Meter $438.45 10" Meter $627.55 (2) Volume Charge — None The wastewater billing exclusion is based on one - hundred (100 %) percent of the actual water volume sub metered. MINIMUM BILLING Facility Charge PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. 15 WASTEWATER SURCHAR In addition to the above charges for services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -250] B + [Su -250] S]) Where: Cu is the surcharge for customer X. Vu is the billing volume per 1000 gallons for customer X. .00834 is the conversion factor Bu is the tested BOD level for user X or 250 mg /l, whichever is greater. B is the unit cost factor for treating one pound of BOD. Su is the tested TSS level for user X or 250 mg /l, whichever is greater. S is the unit cost factor for treating one pound of TSS. VOLUME CHARGE EXCLUSI The wastewater volume exclusion shall be based on the water volume calculated during the billing period. This sub - metered volume shall be excluded, in other words, removed, from the master meter water volume prior to the wastewater billing volume calculation. M SCHEDULESCH SEPTAGE & CHEMICAL TOILET DISPOSAL AT THE PECAN CREEK WATER RECLAMATION PLANT SEPTAGE'1 ANSI'1 :j� STATION (Effective ctive 10 101 / 15 PERMIT REQUIRED All persons owning or operating a vacuum truck, cesspool pump truck, liquid waste transport truck or other vehicle shall not service any septic tank, seepage pit, grease interceptor, grit trap /oil separator, or cesspool within City of Denton without first having received a valid transport truck discharge (TTD) permit. APPLICATION Applicable to all users of the Pecan Creek Water Reclamation Plant Septage Transfer Station. The user must sign the "Agreement for Disposal of Liquid Waste" and comply with the following requirements: 1. Sections 26 -309, 26 -310, and 26 -311 of the City of Denton Code of Ordinances 2. Provide to the City: signed "Application for Permit ", "Agreement for Disposal of Liquid Waste" documents, and provide copy of current TCEQ Registration Certificate, current Insurance Certificate for each vehicle, and current Manager of Operations Driver's License, 3. Comply with the "Liquid Waste Hauler — Vehicle Inspection Audit" requirements City staff, after reviewing the permit application and agreement, and after conducting any necessary research, may issue the permit, issue the permit with conditions, or deny the issuance of the permit. The City will establish the number of permits to be issued. The City maintains the right to deny the disposal of wastes at the Septage Transfer Station when necessary to prevent adverse affects to the operations of the treatment facilities. (1) Facility Charge (2) Volume Charge (3) Application Fee (4) Vehicle Permit Fee (5) Waste Manifests per book of 100 MINIMUM BILLIN Facility Charge W $5.80/bill $37.20/1,000 gallons $300.00 /per calendar year $300.00 /per vehicle per calendar year $40.00 PAYMENT Application and Vehicle Permit fee is due in full before first disposal at Pecan Creek Water Reclamation Plant Septage Transfer Station. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. VOLUME CHARGE Billing for the septage volume contained in the septage hauling tank, shall be based on the full tank volume only. TERMS AND RENEWAL Permits are issued annually, beginning Dec. 1, and are effective from Jan. 1 or the date of issuance, whichever is later, through Dec.31 of the same calendar year. The permit application process should be initiated and fees should be paid as early as possible during the last quarter of each calendar year for the upcoming calendar year so that adequate time is available for review and processing of the application. Submittal of applications by Dec.l will eliminate the possibility of permits being issued after Jan. 1. All permits issued under this schedule shall be valid for up to one calendar year from the date of issuance. All permits issued during each calendar year will expire on the last day of that calendar year. M SCHEDULE SEE EQUIPMENT SERVICES FACILITIES AND RESTAURANTS & FOOD SERVICE ESTABLISHMENTS WASTEWATER SERVICE (Effective 10101115) APPLICATION Applicable to facilities which perform washing, cleaning or servicing of automobiles, trucks, buses or similar equipment and are categorized by North American Industry Classification System ( NAICS) numbers: (811111, 811112, 811113, 811118, 811122, 811121, 811192, 811198, 447110, 447190) and /or similar code classifications. Applicable to all restaurants and food service establishments that prepare and serve food directly to customers and are categorized by NAICS numbers: (722110, 722211, 722212, 722213, 722410, 722310, 722320) and /or similar code classifications. MONTHLY RATE (SEE) (1) Facility Charge $26.20/bill (2) Volume Charge $6.95/1,000 gallons effluent Billing based on ninety (95 %) percent of monthly water consumption. Plus PRETREATMENT / PROGRAM CHARGES (As Applicable) (SEA) (A) Categorical $400/bill (SEB) (B) Non - categorical $50/bill The appropriate Pretreatment/Program charge will be applied if the Customer is identified as either categorical or non - categorical. These charges are not to be applied if the Customer is not designated as either a categorical or non - categorical customer. SAMPLING /ANALYSIS CHARGES (As Applicable) (A) Sampling charge per sample site (each) $60.00 (B) Analysis charge (per test) Actual cost per test (C) Violation demand sampling charge per sample site: Four -Part Grab $170.00 /each First Day of Composite Sampling $110.00 Additional Day Composite Sampling $50.00 /each i01 "SEE" RATE EXEMPTIONS (1) Customers under the SEE rate shall be charged the SC rate if only pre - wrapped and preprocessed foods are served from their premises and no food processing is performed on the premises so that only minimal organic material is discharged to the sanitary sewer. The exemption for the SEE class shall be determined by the City of Denton Environmental Health Services Food Inspection Division. (2) Customers under the SEE rates shall be charged the SC rate plus the applicable industrial surcharge if the Customer: (a) Installs a wastewater sampling manhole on the sanitary sewer discharge line; (b) Agrees to pay for the City to sample and analyze, quarterly, the wastewater discharge for the following: Biochemical Oxygen Demand (BOD), Total Suspended Solids (TSS), and Fats, Oils and Grease (FOG), based on the actual costs; and (c) Agrees to pay, based on the industrial surcharge formula, a surcharge on all wastewater discharged that is in excess of 500 mg /1 of BOD and 600 TSS as determined by the monitoring performed in Section 2(b), MINIMUM BILLING Facility Charge WASTEWATER SURCHARGE The wastewater surcharge calculation that applies to equipment services facilities and restaurant and food service establishments claiming the SEE exemption shall be based on the following formula: Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -500] B + [Su -600] S]) Where: Cu is the surcharge for customer X. Vu is the billing volume per 1000 gallons for customer X. .00834 is the conversion factor Bu is the tested BOD level for user X or 500 mg /l, whichever is greater. B is the unit cost factor for treating one pound of BOD. Su is the tested TSS level for user X or 600 mg /1, whichever is greater. S is the unit cost factor for treating one pound of TSS. ME PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider, VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula; Water volume x .95 x Rate per 1,000 gallons 1,000 21 SCHEDULESM METERED WASTEWATER INSIDE AND OUTSIDE CORPORATE LIMITS (Effective 10101115) APPLICATION Applicable to any wastewater service Customer whose wastewater discharge is metered from a single customer location and not otherwise classified under this ordinance. MONTHLY RATE Plus (1) Facility Charge (2) Volume Charge SMI Inside Corporate Limits $323.80/bill SMO Outside Corporate Limits $372.40/bill $5.0511,000 gals $5.75/1,000 gals (3) Pretreatment/Program Charge (As Applicable) (SMA) (A) Categorical $400/bill (SMB) (B) Non - categorical $50 /bill The appropriate Pretreatment/Program charge will be applied if the Customer is identified as either categorical or non - categorical. The categorical and non - categorical classifications are not bound by corporate limits. These charges are not to be applied if the Customer is not designated as either a categorical or non - categorical Customer by the wastewater utility staff. SAMPLING /ANALYSIS Cl JAR l,, (As Applicable) (A) Sampling charge per sample site (each) $60.00 (B) Analysis charge (per test) Actual cost per test (C) Violation demand sampling charge per sample site: Four -Part Grab $170.00 /each First Day of Composite Sampling $110.00 Additional Day Composite Sampling $50.00 /each M WASTEWATER SURCHARGE In addition to the above charges, there will be added to the monthly rate for metered wastewater, a surcharge based on the following formula: Surcharge Unit Cost Factor $0,47 per pound of Biochemical Oxygen Demand (BOD) $0,42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -250] B + [Su -250] S]) Where: Cu Vu Bu ,00� B Su S MINIMUM BILLING is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg /1, whichever is greater. 34 is the conversion is the unit cost factor for treating one pound of BOD. is the tested TSS level for user X or 250 mg /1, whichever is greater. is the unit cost factor for treating one pound of TSS. Facility Charge, plus the appropriate Pretreatment/Program Charge, if applicable PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. ,SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period, Formula: Wastewater volume x Rate per 1,000 gallons 1,000 W SCHEDULESGE SALE OF TREATED WASTEWATER EFFLUENT (Effective 10/0 1 / 15) APPLICATION Applicable for sales of treated wastewater effluent to any municipal utility or approved private business. Useable for non - potable purposes only. Not intended for human consumption. Not available for resale in any event. 1`1�01)I ('T' AVAILAB11..1 "1' Wastewater effluent is available for resale only if volumes are available. Supplies may be limited or unavailable. MONTHLY RATES (1) Facility Charge 3/4" Meter 1" Meter 1 -1 /2" Meter 2" Meter 3" Meter 4" Meter 6" Meter 8" Meter 10" Meter (2) Volume Charge MINIMUM BILLING Facility Charge PAYMENT Per Bill $22.60 $29.40 $35.20 $46.85 $100.40 $199.10 $272.10 $381.25 $545.70 $1.35/1,000 gallons Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. VOLUME CHARGE Billing for the wastewater volume shall be based on the effluent volume calculated during the billing period. Formula: Effluent volume x Rate per 1,000 gallons 1,000 SCHEDULE SSC WHOLESALE WASTEWATER TREATMENT SERVICE FOR A GOVERNMENTAL AG'ENCY Q1V1SIO , ORmSUBD1V[SIO (Effective 10101115) APPLICATION Applicable to any municipal corporation, or other governmental agency or subdivision which operates a wastewater collection system and contracts with the City of Denton for wastewater treatment service. MONTHLY RATES (1) Facility Charge $224.00/bill (2) Pretreatment/Program Charge (As Applicable) (A) Categorical $400.00 /bill (B) Non - categorical $50.00 /bill (3) Volume Charge $2.50/1,000 gallons Billing shall be based on one hundred (100 %) percent of actual gallons measured. SAMPLING /ANALYSIS CHARGE (As Applicable) (A) Sampling charge per sample site (each) $60.00 (B) Analysis charge (per test) Actual cost per test (C) Violation demand sampling charge per sample site: Four -Part Grab $170.00 /each First Day of Composite Sampling $110.00 Additional Day Composite Sampling $50.00 /each MINIMUM BILLING Facility Charge. W11'OLESALE S1J R0 JAIZ F, In addition to the above charges for wholesale wastewater services, there will be added to the monthly rate an industrial surcharge based on the following formula: M Surcharge Unit Cost Factor $0.47 per pound of Biochemical Oxygen Demand (BOD) $0.42 per pound of Total Suspended Solids (TSS) Cu = Vu x.00834 ([Bu -250] B + [Su -250] S]) Where: Cu Vu .00F Bu B Su S PAYMENT is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. 34 is the conversion factor is the tested BOD level for user X or 250 mg /1, whichever is greater, is the unit cost factor for treating one pound of BOD. is the tested TSS level for user X or 250 mg /1, whichever is greater. is the unit cost factor for treating one pound of TSS. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided, subject to the Special Facilities Rider. VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Wash watery volume x Rate per 1,000 gallons 1,000 SCHEDULE CWM DYNO DIRT PRODUCTS (Effective 10101115) APPLICATION Applicable to any and all customers, whether residential, commercial, or wholesale, which elect to acquire the City of Denton's Dyno Dirt products for their use. The City of Denton reserves the right to restrict or limit the sale of all Dyno Dirt products to any customer at any time. Dyno Dirt products will be sold by volume on a cubic yardage basis, or in one cubic foot bags. Bulk quantities will not be sold in volumes less than one -half cubic yard. (A) Compost (1) Dyno Soil (Top Soil Blend) $30.00 /Cubic Yard (2) Dyno Dirt $25.00 /Cubic Yard (3) Dyno Lite $30.00 /Cubic Yard (B) Wood Mulch (1) Dyno Landscape Mulch $27.50 /Cubic Yard (2) Dyno Deco Colored Mulch $30.00 /Cubic Yard (3) Dyno Double Grind $17.50 /Cubic Yard Purchases for (A) and (B) above, greater than ten (10) cubic yards will receive a 20% discount, purchases greater than 100 cubic yards will receive a 40% discount. A contractor's rate will be given to companies or persons who provide a current and valid resale certificate for inspection. The contractor's rate includes a 30% discount on any purchase of from 1 to 99 cubic yards at any one time of any Dyno Product of the City of Denton. (C) City of Denton departments will receive a 40 % discount on all purchases of Dyno Dirt products. (D) Asphalt Millings $10.00 /Cubic Yard PRODUCT AVAILABILITY The City of Denton produces Dyno Dirt products throughout the year in varying limited quantities. The City of Denton does not guarantee the availability of any product, and expressly reserves the right to restrict the sale of any product based upon available volumes. W LOCATION All Dyno Dirt products may be purchased from the City of Denton at the following location: Location Address Compost Sales Bldg Water Reclamation Plant 1100 Mayhill Road, Denton, Texas WHOLESALE PURCHASES All Dyno Dirt products purchased wholesale, for resale to the public, is to be identified as a City of Denton manufactured product. The wholesale purchaser must provide the City of Denton selling- price information to the retail customer if it is requested. in SCHEDULE GBL GRASS /BRUSH/LEAVES (Effective 10101115) APPLICATION Applicable to all City of Denton residents who submit for deposit at the landfill grass clippings, brush, and /or leaves, who shall pay the following rates: GRASS /BRUSH/LEAVES: Product Characteristics Charge 1. Uncontaminated bagged or un- bagged $20.00 /ton grass, brush, or leaves in less than twelve foot (12') lengths. 2. Uncontaminated bagged or un- bagged $30.00 /ton grass, brush, or leaves in greater than twelve foot (12') lengths. 3. Contaminated grass, brush, or leaves of any length: $44.00 /ton 4. Whole trees and stumps $50.00 /ton MINIMUM CHARGE $25.00 per load Professional landscapers, tree trimmers, and yard maintenance personnel are required to bring their grass, brush, or leaves (all collectible yard waste) to the landfill, and are not permitted to leave any of the above - referenced collectible yard waste items stacked or piled on the curb at the Customer's location. Grass, brush, and leaves shall not be assessed the City of Denton solid waste 3.5% surcharge to compensate for the State of Texas surcharge for all solid waste received at landfills if the materials are not land filled. M SCHEDULEST WASTEWATER TAP AND MANHOLE FEES (Effective 10/01/15) APP'' hA "",ATION This schedule applies to the installation, removal, or relocation of wastewater taps by the City of Denton Utility Department at the request of any person, firm, association, corporation, or other legal entity. TAP FEES Any person, firm, association, corporation, or other legal entity that requests that a wastewater main tap be removed, installed, or relocated by the Wastewater Utility Department shall pay in advance to the Wastewater Utility Department the following applicable fees: WASTEWATER TAPS WITH CLEANOUT Size of Tap Paved Street Unpaved Street 4 inch $2,300.00 $1,500.00 6 inch $2,600.00 $1,650.00 8 inch $2,800.00 $1,800.00 10 inch $3,000.00 $2,000.00 MANHOLE BREAKOUT FEE 6" —12" Line $165.00 FEES FOR INSTA_1..t ATIONS NOT LISTED For installation of a tap or manhole for which a fee is not specified, the requestor shall pay in advance a deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20 %. Upon completion of the installation or similar work requested, the customer shall be billed at actual cost, as determined by the Wastewater Utility Department, plus a 20% administrative charge. Any excess deposit shall be refunded to the Customer. 31 SCHEDULE STE TRI TI a[) EFFLI JI N'1° WA,S 11, -,.W 'l "L?] TA 1 FF S (Effective 10 /01 /15) APPLICATION This schedule applies to the installation, removal, or relocation of treated effluent wastewater taps by the City of Denton Utility Department at the request of any person, firm, association, corporation, or other legal entity. TAP FEES Any person, firm, association, corporation, or other legal entity that requests that a wastewater main tap be removed, installed, or relocated by the Wastewater Utility Department shall pay in advance to the Wastewater Utility Department the following applicable fees: REUSE WASTEWATER LINE TAPS Size of Tap Paved or Unpaved Street 4 inch Actual cost per tap 6 inch Actual cost per tap 8 inch Actual cost per tap 12 inch Actual cost per tap FEES FOR INSTA].IATIONS NOT LISTED For installation of a tap for which a fee is not specified, the requestor shall pay in advance a deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20 %. Upon completion of the installation or similar work requested, the customer shall be billed at actual cost, as determined by the Wastewater Utility Department, plus a 20% administrative charge. Any excess deposit shall be refunded to the Customer. ON -SITE SEWAGE FACILTY PERMIT FEES (Effective 10101115) APPLICATION This schedule applies to the new construction of aerobic treatment systems, new construction of non - aerobic treatment systems, and repair and alteration of the above. OSSF PERMIT FEES Any person, firm, association, corporation, or other legal entity that requests a wastewater system work permit shall pay in advance to the Wastewater Utility Department the following applicable fees: New Construction of aerobic treatment systems $410 Reinspection Fee of aerobic treatment systems $200 New Construction of non - aerobic treatment systems $210 Reinspection Fee of non - aerobic treatment systems $100 Repair or Alteration fees (All types of OSSF's) $50 M SCHEDULE SWP COLLECTION AND TRANSPORTATION SERVICES PERMIT (Effective 10101115) Any person, entity, or business engaged in the collection and transport of waste, recyclables, or other materials as classified within this rate schedule, and operating within the City of Denton must possess a current permit issued from the City prior to providing collection and transportation services. Any private container located within the City of Denton for use in waste and recyclables collection services is required to be permitted. Permits for collection and transportation services are required for, but are not limited to, the following wastes and recyclables classifications: • Municipal Solid Waste • Special Waste • Medical Waste • Hazardous Waste • Restaurant Oil and Grease • Grease & Grit Trap Waste • Commercial and Industrial Recyclable Materials — containerized and baled • Residential Recyclable Materials • Construction and Demolition (C &D) materials, recyclables, reuseables, and discarded C &D materials • Waste and recyclable collection service providers operating in newly annexed areas, or contract service providers for the city • Refuse or recyclables that the City does not collect and transport. The person shall apply for a permit from the city, and shall pay the required application fees at the time of permit application. All permits are non - transferable and are granted as non - exclusive service permits. Granting permits will be at the discretion of the City to meet the needs of the community. The permit applicant must pay the required fees, and meet all permit requirements prior to the issuance of a permit. Applicants with a Texas Commission of Environmental Quality (TCEQ) poor compliance history may not be permitted. All non -City of Denton container owners (roll -off containers, self contained compactors) are required to annually pay the per cubic yard container fee to the City of Denton for each container, that is at least 1 cubic yard in size, located within Denton's city limits. Applicants will qualify to be permitted as `Small Operators' if they have four or fewer service locations within the City of Denton, and operate two vehicles or less, within the City of Denton, including trailers, of which each vehicle does not have a Gross Vehicle Weight Rating (GVWR) of more than 14,000 pounds. Granting of Permit As a condition of granting a permit, the person or entity receiving such permit (permittee) agrees to execute and comply with all requirements of the service agreement, carry specific types and amounts of insurance, submit reports, and pay the necessary fees by the specified due date. Following the granting of a permit, permit stickers shall be issued by the City and shall be placed 34 by the permittee on all vehicles operating within the city limits of Denton and upon all containers placed within the City limits of Denton. Collection and transportation vehicles operating in Denton, and containers set in Denton are required to display a current and valid calendar year permit decal at all times. If decals are lost by the permittee, and are not visible on their vehicles or containers, then the vehicles and /or containers must be re- permitted by the permittee, and all appropriate fees paid, prior to the vehicles or containers being placed in service within Denton's city limits. The City of Denton is not responsible for lost decals. Exclusions Individuals living within the City limits of Denton, and hauling personal materials, wastes, or recyclables from their primary living residence are exempt from this requirement. Any person, who transports applicable materials three or fewer times per year, shall register with the City on the forms provided for that purpose. No annual service fees are required, but registration and permitting through the City is required. Fees Collection and Transportation Services Permit Fees Non City of Denton Service Providers Application Fee Paid Annually $500.00 Service Fees: Tier IV engines manufactured after January 2011. Per Vehicle $1,000.00 Tier III engines manufactured between Jan. 2007 and Dec. 2010, Per Vehicle $1,500.00 Engines manufactured between Jan. 2003 - Dec. 2006. Per Vehicle $2,250.00 Engines manufactured prior to Jan. 2003. Per Vehicle $3,000.00 Container Fee, per Cubic Yard, per container (if Paid Annually $4.00 applicable) Right -of -Way Fee Per Cubic Yard, per Container, per Month (if applicable) Paid Monthly $4.00 Waste manifests per book of 100 $40.00 M Small Operators Collection and Transportation Services Permit Fees Non City of Denton Service Providers SMALL OPERATORS - Special Waste, Medical Waste, Hazardous Waste, Restaurant Oil and Grease, Grease & Grit Trap Waste, Commercial and Industrial Recyclables, and Construction and Demolition Materials Application Fee Paid Annually Service Fee Per Vehicle Container Fee Per Cubic Yard, per container (if applicable) Paid Annually Right -of -Way Fee Per Cubic Yard, per Container, per Month (if applicable) Paid Monthly Waste manifests per book of 100 $200.00 $400.00 $4.00 $4.00 $40.00 Service providers desiring to provide services in more than one service category are required to complete permit documentation and pay the applicable fees for each service category they desire to provide within Denton's City limits. All fees paid are nonrefundable. Application, service, and container fees are payable at the time of application submittal. Right - of -way usage fees are due and payable prior to setting a container in the right -of -way. Service and container fees are non - transferable between vehicles and containers, and are unit specific. Container fees apply to each container placed by the permitee within the City limits of Denton, and non -City owned containers serviced by the City, but do not apply to City of Denton owned containers. Containers are defined as any refuse containment equipment that are at least one cubic yard in size, which can be lifted and emptied using a special vehicle designed for that use, i.e, which are not emptied manually. Container fees are established for each cubic yard of container capacity, per container, as listed within the Fees section. All containers require a container permit fee regardless if the container is or is not placed on the ground. Permitting and fees are applicable and due for all businesses hauling baled recyclables generated from businesses located within Denton's City limits. Permittees currently permitted, and choosing not to reapply for and make payment for a new collection and transportation services permit by December 31 st , for the upcoming calendar year beginning January 1St will be assessed an additional $500 fee upon permitting or may not be granted a permit by the City of Denton. If all permit fees are not paid prior to December 31St, all unpermitted containers will be removed from their service provider locations beginning January 1St by the City of Denton. Collection of these containers by the service provider requires that the time and materials charges incurred by City staff to relocate these containers must be reimbursed to the City by the service provider, prior to the City's release of these containers. M Violations /'No Operations' Declaration A business which has not been permitted by the City to operate within the City limits of Denton; or has been suspended by the City from operating within the City limits of Denton, Texas shall be charged a sum of up to $500.00 per day by the City, for each day of violation of this ordinance, if the provider violates the `No Operations' requirement prior to receipt of a City of Denton permit, or during any suspension of a permit period. Each day of illegal operations during a `No Operations' period is considered a separate violation and the service provider is subject to being charged a sum of up to $500.00 for each day of violation. Following the receipt of a `No Operations' declaration and prior to a service provider being reinstated to legally operate within the City limits of Denton, the service provider must meet with the City staff to update their application and agreement and make payment of all monies owed to the City. If a service provider operates a vehicle within Denton's City limits which has not been permitted, uses a container which has not been permitted, operates any piece of equipment with an expired permit, performs some other permit violation, does not make payment of the appropriate fees in a timely manner, the city will issue a `No Operations' declaration to the service provider, and assess all applicable permit violation fees. Once a service provider has been issued a 'No Operations' declaration from the City, all services to be provided within Denton's City limits are required to cease. Non - permitted containers may be collected by the City and stored until collection, storage, and permitting fees associated with each container are paid to the City of Denton. Following a meeting with the City staff, and the payment of all monies owed the City, the status of the permit will be determined. Revocation of Services & Non - Renewal of Permits If the City finds any requirement of the permit has been violated, or observes service providers operating within Denton's City limits without current permits, the City may institute a `No Operations' declaration. Additionally, the City may revoke or not renew the service provider's permit, thereby requiring the service provider to cease all operations within the City limits of Denton. Reclassification of Recyclables Recyclables containing ten (10 %) percent or more contamination, as determined by the City, will be considered refuse, and its collection may not be provided by service providers permitted under this ordinance. This material shall be reclassified as refuse and will be collected by the City of Denton. The General Manager, Solid Waste Services or his designee, will make the final determination on whether stored recyclables contain excessive contamination, which at the City's determination, may cause the reclassification of these materials to municipal solid waste (MSW), thereby negating the ability of a service provider to transport this material within Denton's City limits under their operating permit pursuant to this ordinance. The City of Denton has the authority to inspect the contents of any container located within Denton's City limits in order to determine the materials content of the container, so as to ensure compliance with the contamination requirements, which shall not exceed 10 %. a Terms and Renewal Permits are issued annually, beginning December 1, and are effective from January 1, or the date of issuance, whichever is later, through December 31 of the same calendar year. The permit application process should be initiated and fees should be paid as early as possible during the last quarter of each calendar year for the upcoming calendar year so that adequate time is available for review and processing of the application. All collection and transportation permits shall be valid for up to one calendar year from the date of issuance. All permits issued during a calendar year will expire on the last day of that calendar year. SCHEDULE SD STORM DRAINAGE FEES �mmmm(Effective 10101115) APPLICATION Applicable to all real property and appurtenances owned and located within the incorporated limits of the City of Denton, Texas, except as exempted below. The Storm Drainage fee charged to each tract of real property is based upon the amount of impervious surface cover that results in water runoff or water quality impacts into the City of Denton drainage system. N40N 1 111,' 1`111 RF1' a1DENTIAL (S1.)R The residential fee is applicable to all single - family through fourplex real properties located within the incorporated limits of the City of Denton, Texas, for which impervious surfaces can be individually identified. The residential fee is established by utilizing a block system. The fee charged in each fee block is set forth and established as follows: Fee Block 0 — 600 Square Feet 601 -1,000 Square Feet 1,001 — 2,000 Square Feet 2,001— 3,000 Square Feet 3,001 — 4,000 Square Feet 4,001— 5,000 Square Feet 5,001 — 6,000 Square Feet Over 6,000 Square Feet MONTHLY FEE — NON - RESIDENTIAL (SDN) Per Bill $0.50 $1.00 $3.35 $5.45 $7.60 $9.75 $12.00 $15.50 The non - residential fee is applicable to all other real property owned and located within the incorporated limits of the City of Denton, Texas, except as exempted below. The non - residential fee is based upon the total square footage of impervious surface cover measured for each customer /owner. Formula: Measured Square Footage of Impervious Surface Cover x $0.00186 per bill EXEMPTIONS The following real property owned and located within the incorporated limits of the City of Denton, Texas shall be exempt from imposition of the residential fee or the non - residential fee: 1. Real property with proper construction and maintenance of a wholly sufficient and privately -owned drainage system, not draining into the City of Denton drainage system, upon the real property's inspection and certification by the City; or W 2. Real property held and maintained in its natural state, until such time that the real property is developed, and all of the public infrastructure constructed thereon has been accepted by the City; or 3. Real property, consisting of an unimproved subdivided lot, until such time as a structure has been built on the lot and a certificate of occupancy has been issued by the City. No other exemptions to the residential fees or the non - residential fees are applicable we SCHEDULE SDI STORMWATER REINSPECTION FEE (Effective 10101115) APPLICATION Applicable to active construction or land disturbing activities located within the incorporated limits of the City of Denton, Texas. The Stormwater Reinspection Fee is charged to operators or designated representatives of projects where land disturbing activity is occurring, including new construction, demolition, and redevelopment. RATE Reinspection fees for initial or periodic inspection resulting in non - compliance, notices of violation and/or stopwork orders. Fees may be waived at discretion of the inspector for minor noncompliance issues. Fee: $150.00 /site inspection LIBI SPECIAL FAC11.,111F"S RIDER ........ Effec tive..... �� .......................�.. ( 0 01/15) (1) All service shall be offered from available facilities. If a customer service request for a special or unusual service not otherwise provided for by the Wastewater rate ordinance, and /or requires facilities and devices which are not normally and readily available at the location at which the Customer requests the service, then the City shall provide the service subject to the requirements of paragraph (2) of this rider. (2) The total cost of all facilities required to meet the Customer's special requirements which are incurred by the City in connection with rendering the service, shall be subject to a special contract entered into between the Wastewater Utility Department and the Customer. This contract shall be signed by both parties prior to the City providing the requested service to the Customer. SPFICIAL (',ON1 ITIONS MQE,1 (Effective 10101115) If a special condition or circumstance exists not otherwise provided for by the wastewater rate ordinance, then the City shall have the authority to provide for the special condition subject to the requirements of paragraph 2 of this Rider. Any billing adjustments in connection with any special condition or circumstance shall be at the discretion of the Director of Water Utilities or his designee. W4 SECTION 2. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. The Schedule of Rates herein adopted shall be effective, charged and applied to all wastewater service rendered on and after October 1, 2015, and a copy of said rates, fees, and charges shall be maintained on file in the Office of the City Secretary of the City of Denton, Texas. PASSED AND APPROVED this the day of..... - _ ......., ........... ._, 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r B 43 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -875, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Utilities Administration CM /ACM: Howard Martin, 349 -8232 Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for the schedule of miscellaneous fees, deposits, billings and procedures for administrative services to city utilities customers contained in Ordinance No. 2014 -286; providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND The proposed miscellaneous fees, deposits, billings, and procedures for administration services schedule is designed to recover the cost of service and provide a positive or break -even net income. PRIOR ACTION/REVIEW Proposed FY 2015 -2016 Utilities budgets were presented to the Public Utilities Board ( "PUB ") during May through July, 2015. The miscellaneous rate ordinance was approved by the PUB on July 27, 2015 by a vote of 4 -0. The budget, along with the draft miscellaneous rate ordinance, was submitted to the City Council for review on August 6, 2015. The miscellaneous rate ordinance is scheduled for adoption by the Council on September 15, 2015. FISCAL SUMMARY The rates and charges included in the miscellaneous rate ordinance provide the revenue necessary to recover the cost of service to customers. RECOMMENDATION Staff recommends approval of the proposed miscellaneous rates ordinance, and requests that the ordinance become effective October 1, 2015. EXHIBITS Proposed FY 2015 -16 Miscellaneous Fees, Charges, and Deposits Ordinance Respectfully submitted: Howard Martin Assistant City Manager/Utilities City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -875, Version: 1 Prepared by: Kenneth Banks. Director of Environmental Services and Utility Budgets City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR THE SCHEDULE OF MISCELLANEOUS FEES, DEPOSITS, BILLINGS AND PROCEDURES FOR ADMINISTRATIVE SERVICES TO CITY UTILITIES CUSTOMERS CONTAINED IN ORDINANCE NO. 2014 -286; PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the schedule of charges for general utility services as generally provided for in Chapter 26 of the Code of Ordinances; and for services to other City of Denton customers and taxpayers, are hereby established as follows: A. ACC'O[)N l" CONNECTION AN[) RECONNECTION C I IA:I�G[,'S PAGE Meter Connection Charge 3 Meter Reconnection Process Charge 3 Unauthorized Usage Penalty 4 New Customer Application Charge 4 B, METER CHARGES Meter Reading 5 Meter Testing 5 Meter Tampering and /or Damage Charge 5 Meter Inaccessibility Charge 6 C. MISCELLANEOUS FEES, CHARGES AND DEPOSITS Returned Payment Charge 7 Service Deposits 7 Waiver of Service Deposits 8 Late Payment Charge Due on Delinquent Balances 8 1 Interest Charge on Past Due Account Balance Interest Earned on Contract Retainage Credit Card Processing Service Fee Cm °m(,'OI,J ' CONNI IT.i ION....AND 1Ui't�NNF,1C:' "l`It) P.i'1��� C,1`1` S CfwNA (I'aS (Effective 10/01/15) For the purposes of this rate schedule, business hours shall be defined as Monday through Friday, 8:00 AM to 5:00 PM. METER CONNECTION CHARGE APPLICATION Applicable when a customer requests service on a first time basis where no permanent service previously existed and where a new account number is established or, when a customer requests service at an address which has existing or previous service, with an existing account number and history, and the electric and /or water meter must be installed or activated for readiness. CHARGE First Service Requested $23.00 First Service Requested, guaranteed $61.00 same day service First Service Requested, after $61.00 business hours METER RECONNECTION PROCESS CHARGE APPLICATION Applicable when a customer's account is processed for disconnection due to nonpayment. CHARGE Delinquent Service Fee $46.00 (When service is disconnected at the electric meter socket or the water meter) Delinquent Service Fee $168.00 (When a service truck is required or the water meter has been removed) Reconnect Charge, guaranteed same day service (In addition to delinquent service fees) $61.00 3 Reconnect Charge, guaranteed same day service (When a service truck is required or the water meter has been removed) $231.00 When more than one trip, within twenty -four (24) hours, is required to restore a customer's service, a Return Trip Charge, in addition to the Reconnection Charge, shall be applied for each additional trip. Return Trip Charge during business hours $23.00 Return Trip Charge after business hours $61.00 UNAUTHORIZED USAGE PENALTY APPLICATION Applicable to any customer that fails to request connection of services within 24 hours of occupancy in a new service location. CuAuCrF Unauthorized Usage Penalty $30.00 NI V CI.JSTOMER APPLICAJ-10N 1 1'F" APPLICATION Applicable when a customer requests new service or is added to an existing account and provides Social Security or Tax ID information to verify identity and credit history. CHARGE New Residential Customer Application Charge - per person $3.00 New Commercial Customer Application Charge $16.00 M METER CHARGES (Effective 10101115) METER READING APPLICATION Applicable to any electric or water utility customer who requests a reading of a city meter due to a contested billing more than twice in the previous twelve (12) months, and no error is found. CHARGE Per Additional Reading APPLICATION $46.00 Applicable to any customer who requests the testing of a city meter previously tested within the past four (4) years and the meter is found to be within accuracy standards. CHARGE Per Test ACCURACY STANDARDS $62.00 /KWH Electric Meter $93.00 /KW /KWH Electric Meter $93.00 Water Meter A meter is defined as within accuracy standards when found to be plus or minus two percent (2 %) or less. METER TAMPERING AND /OR I:)AMA.1E CHARGE APPLICATION Applicable to any person that tampers with, damages, or illegally connects to a city electric, water, or wastewater utility system. CHARGE Per Event $310.00 minimum per electric connection per system Per Event $200.00 minimum per water connection per system 5 METER INACCESSIBILITY CHARGE APPLICATION Applicable to any customer who prevents the regular and routine reading, maintenance, repair or removal of any city meter due to inaccessibility of the meter. CHARGE Per event $46.00 MISCELLANEOUS FEES CHARGES, AND DEPOSITS (Effective 10101115) RETURNED PAYMENT CHARGE APPLICATION Applicable when a customer's or taxpayer's check, or money order, or bank draft for payment of fees, fines, court costs, taxes, utilities, or other charges has been dishonored by the maker's bank and returned to the City of Denton unpaid. CHARGE Per Check SERVICE DEPOSITS APPLICATION $27.00 Applicable when a residential customer requests utility service in the City of Denton service area and does not have twelve (12) months of good credit standing with the City of Denton or demonstrates a passing credit rating through an external credit reporting agency. Applicable when a commercial customer does not have twenty -four (24) months of good credit standing with the City of Denton or demonstrates a passing credit rating through an external credit reporting agency. Not applicable when a commercial customer provides an irrevocable letter of credit to the City of Denton as security for payment. CHARGE: Residential Customer Commercial Customer An amount up to 1/6 of the last 12 months of billing at the service location. If utility service is disconnected for non - payment or the account is consistently past due, then the customer will be required to pay a deposit sum up to 1/6 of the last 12 months of billing at the service location. An amount up to 1/6 of the last 12 months of billing at the service location. If utility service is disconnected for non - payment or the account is consistently past due, then the customer will be required to pay a deposit sum up to 1/6 of the last 12 months of billing at the service location. Deposits will earn interest for the customer. The applicable rate of interest will be adjusted semi - annually to equal the rate of a one -year United States Treasury Note on October 1 and 7 April 1 of each year. If refund of deposit is made within thirty (30) days of receipt of deposit, no interest payment will be made. If the City retains the deposit more than thirty (30) days, payment of interest, at the current rate, shall be made retroactive to the date the deposit was paid, A. Payment of the interest to the customer shall be made at the time the •deposit is returned or credited to the customer's account. B. The deposit shall cease to earn interest on the date it is returned or credited to the customer's account. WAIVER OF SERVICE DEPOSITS APPLICATION Applicable when an Applicant is a citizen of the City of Denton, Texas and who also is a "victim of family violence," applies for utility service in the City of Denton, Texas. To be a qualified as a "victim of family violence" an Applicant must secure and provide a certification letter, provided by one of the certifying entities to the Utilities Customer Service Department. If a proper, dated and completed certification letter is presented by or on behalf of the Applicant to the Utilities Customer Service Department, and its issuance is verified by the Utilities Customer Service Department, then the requirement of a utility deposit shall be waived for that Applicant. This provision is applicable solely to "victims of family violence" as defined by Texas Family Code, §71.004, as amended. No other relief from the City's utility rates, or deposits, or charges, or fees is hereby provided to "victims of family violence." LATE PA 4'm1V F 'T CI i ,l, ' I)1 JEON CSI 1 1N [J ENT B L A 1CFS APPLICATION To cover a portion of the administrative costs of collecting past due balances, a late payment charge shall be assessed on the fifth business day following the due date. CHARGE $20.00 late payment charge INTEREST CHARGE ON PAST DUE ACCOUNT BALANCE APPLICATION Interest shall be assessed on any past due account balance (excluding late payment charges) that remains unpaid at the time of the current month's billing calculation. The interest provided for and assessed herein shall be due and payable on the due date of the current month's billing statement. CHARGE 1% / month on all past due charges and account balances unpaid at the time of the current month's billing calculation. * * * *Under no circumstances shall the interest charge provided for herein exceed the legal rate of interest. To the extent that it does so, the charge is inadvertent, and the City intends only to assess, charge and collect such interest rate that does not exceed the highest lawful rate. ON CON'J`l WT Rl „I A1NAGE Contract retainage will earn interest for the contractor as provided by TEX. REV. CIV. STAT. ANN. Article 6252, Sec.5b (Vernon Supp. 1992). The rate of interest will be adjusted semi- annually to equal the interest rate of a one year United States Treasury Note on October 1 and April 1 of each year. Payment of the interest shall be made at the time the retainage is paid to the contractor. CIZEDITCARD 111 .C.)( "ESSINwG SERVICE,' E,' APPLICATION Applicable when a non - residential customer remits payment for fees, fines, court costs, taxes, utilities, or other charges using a credit card, Charge is assessed by the City of Denton's payment processing vendor after the customer has confirmed the payment amount and authorized the fee. CHARGE Per Payment Transaction 2.7% of the payment amount remitted using the non- residential customer's credit card 0 SECTION 2. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. This ordinance shall become effective, charged, and applied to all services occurring on and after October 1, 2015; and a copy of said fees and charges shall be maintained on file in the Office of the City Secretary of Denton, Texas. PASSED AND APPROVED this the day of,,,,, mm .,.__..__ _— 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY In APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY A'-1 -TOIL 1w.Y 10 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -877, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending the schedule of rates for solid waste service contained in ordinance no. 2014 -289. as authorized by Chapter 24 of the Code of Ordinances of the City of Denton, Texas; providing that the provisions of sections 26 -3, 26 -4, 26 -5, 26 -7, 26 -8(a), and 26 -9 of the Code of Ordinances of the City of Denton, Texas shall expressly apply to City of Denton solid waste and recycling services; providing for amendments to the residential refuse & recycling collection services rates; providing for amendments to the commercial refuse and recycling collection services rates; providing for an amendment to the processing and disposal services rates; providing for an amendment to the definition of "container weight limits" in the solid waste & recycling services definitions; providing for a repealer; providing for a severability clause; providing an effective date. The Public Utilities Board recommends approval (4 -0). BACKGROUND During May and June 2015 the Solid Waste & Recycling Department (SW &R) staff discussed the proposed FY 2015 -16 Solid Waste and Recycling Services Budget with the Public Utilities Board during three meetings. The projected revenues presented during the budget discussions and presentations represented the Department's rate adjustments proposed for FY 2015 -16. The proposed FY 2015 -16 rate ordinance was provided and discussed during the Public Utilities Board meeting of July 13, 2015 and July 27, 2015. Actual and Proposed Residential Refuse and Recycling Services Monthly Rates: FY 2015 FY 2016 Small Cart $26.00 $26.75 Standard Cart $26.75 $27.35 Large Cart $32.00 $32.75 Commercial rates are proposed to increase approximately 4.00% for FY 2015 -16. Specific rate increases will vary based on the type of service, size of container, and the frequency of service provided. Roll off customer rates are proposed to increase approximately 1.5% for FY 2015 -16, also dependent on the type of service, container size, and frequency of service. No rate increases were proposed for the Department's disposal and processing services. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -877, Version: 1 OPTIONS The City Council may approve or provide additional direction to the staff concerning the recommended FY 2015 -16 rate ordinance. RECOMMENDATION Staff is requesting the City Council approve the FY 2015 -16 Solid Waste & Recycling Department Rate Ordinance. PRIOR ACTION /REVIEW (Council. Boards. Commissions) The FY 2015 -16 Solid Waste & Recycling Department operations budget and the FY 2016 - 2020 CIP was presented and discussed by the Public Utilities Board at their meetings of May 18, 2015, June 8, 2015 and June 22, 2015. The Public Utilities Board reviewed and discussed the proposed FY 2015 -16 Solid Waste & Recycling Department Rate Ordinance during their meeting of July 13, 2015 and July 27, 2015. The Public Utilities Board recommended approval of the proposed FY 2015 -16 Solid Waste and Recycling Rate Schedule on July 27, 2015. The Solid Waste Fund's budgeted revenues, as presented to the City Council in the proposed 2015 -16 Budget on September 1, 2015, include the rate adjustments as provided within the attached proposed SW &R rate ordinance. These rates were also discussed with the City Council at the August 6, 2015 City Council Budget Workshop. FISCAL INFORMATION The FY 2015 -16 Solid Waste & Recycling Department's operating and capital budgets represent the cost to provide Departmental services. The recommended rate ordinance will provide the resources necessary to meet the Solid Waste & Recycling Department's service needs for the community, and are the basis for the rates established and provided within the rate ordinance. EXHIBITS Exhibit 1- FY 2015 -16 Solid Waste & Recycling Department Rate Ordinance Respectfully submitted: Vance Kemler General Manager Solid Waste & Recycling Services Prepared by: S. Lebsack Administrative & Development Manager Solid Waste & Recycling Services City of Denton Page 2 of 2 Printed on 9/10/2015 Exhibit #1 SECTION 1. The charges for Solid Waste and Recycling collection services as authorized by Section 24 -42(b) of Article II, Section 24 -66 of Article III and Section 24 -4 of Article I of Chapter 24; and by Section 32 -90 of Article IV of Chapter 32 of the Code of Ordinances of the City of Denton, Texas, are hereby established as follows: SOLID WASTE AND RECYCLING RATE SCHEDULES PAGE RESIDENTIAL REFUSE & RECYCLING COLLECTION SERVICES ............................. 2 COMMERCIAL REFUSE & RECYCLING COLLECTION SERVICES ............................ 3 PROCESSING AND DISPOSAL SERVICES ............................................ ............................... 4 SOLID WASTE & RECYCLING SERVICES DEFINITIONS ...... ..............................7 1 RESIDENTIAL REFUSE & RECYCLING COLLECTION SERVICES (Effective 10/01/2015) Residential collection services accounts are defined as: A single-family detached dwelling unit, each unit of a duplex or triplex, or any single unit or living space in which an individual or single family resides. Carts are collected weekly. All refuse must be bagged when placed within the refuse cart and the lid must be fully closed. Recycling materials should not be bagged when placed in the recycling cart and the lid must be fully closed. All carts must be placed at the curb by 7:00 a.m. on the scheduled collection day. Residential accounts are billed monthly. $ 27.35 $ 32.75 To receive any of the following residential services, residents shall contact Customer Service a minimum of one day prior to their scheduled collection day. Service Fees Excess Refuse - per cart reload and empty Yard Waste - per cubic yard, in excess of 4 cubic yards Large Household Item - per item, in excess of 4 items per year Electronics and Appliance with PCB's or refrigerants - per item Residential Remodeling - per cubic yard Cart change out fee for next service day $ 7.00 — — -- ------- - 7.00 00--,- $ 25.00 $ 65.00 COMMERCIAL REFUSE & RECYCLING COLLECTION SERVICES (Effective 10/01/2015) Every owner, occupant, tenant, or lessee of any business, commercial, institutional, or industrial property not entitled to receive residential refuse collection service shall be required to have commercial collection service provided by the City of Denton. Commercial accounts will be billed monthly or semimonthly. New commercial business development and redevelopment will be provided commercial refuse and recycling services as outlined in the Denton Development Code and Site Plan Criteria Manual. Refuse and recyclables will be collected in city provided or city - approved containers only. Only recyclable materials accepted by the City shall be deposited in the City's recycling containers. The owner /manager of all commercial businesses is responsible for notifying their personnel of proper recycling procedures. The City of Denton has the authority to inspect the contents of any municipal container. Recyclable materials contamination shall not exceed 10 %, or the materials will be hauled and billed by the City of Denton as Municipal Solid Waste. Commercial Collections Services Commercial Cart Service One Pair Refuse &Recycling Carts $ ............3275 ................._ Additional Refuse Cart $ 19.75 Y g .. Additional Recycling Cart $ 1..3.50 .m.,......._...........__ Commercial Side Load and Front Load Refuse Services Commercial Refuse & Recycling Rates Per Cubic Yard Commercial Side Load Service $ 33.80 Commercial Front Load Service $ 23.95 6 Cubic Yard Front Load Compactor $ 71.85 Commercial Service Fees ... Delivery / Relocation / Inaccessible / Extra Empty / Exchange $ 75.00_ Container Right -of -Way Fee $ 10.00 Same Day Service Fee $ 50.00 Dumpster Lock Installation and Services $ 20.00 ..........� 200.00 Temporary Container Service Charges $ m „___________ Special Events Recycling �,........ 0 Small Event Recycling 10 Clear Stream $ 6 00 3 Roll-Off Container Rates . . . .. . .... . .................... Open Top Container Rental Per Month .......... $ 163 00 30 Cubic Yard Self Contained Compactor Rental $ 438.00 . . . . ...... ­,""I'll" 42 Cubic Yard Stationary Compactor Rental _63,0_._00 ..... . . .................. ........... 275.00 Container Service Fee (Each Haul) —.I No Parking Zone Fees Initial Year . . ........... . . . . . . -.11, . .. ...... . Front Load $ 1 - . . ......... 95.00 Side Load (Extra Length) $ 375.00 Renewal Fees - Per Month ......... . . .......... . . .. Front Load $ 6.50 Side Load (Extra Length) $ 10.50 F, I .. AND • t1 Landfill Rates Gate Rate Commercial Rate Wholesale Rate Clean Lumber Sludge, Dewatered Contaminated Yard Waste Concrete Special Waste Minimum Charge (per load) Pull Off Fee (per load) After Hour Fee Unsecured Loads Electronics - per item Appliances - per item Cubic Yardage Rates (CY) Uncompacted MSW (per CY) Compacted MSW (per CY) Tires (Each) Street tires < 31" diameter Street tires > 31" diameter and < 42" diameter Off -road and street tires > 42" diameter Street tires < 31" diameter Street tires > 31" diameter and < 42" diameter Off -road and street tires > 42" diameter Brush and Green Waste Whole tree stumps Bagged or unbagged grass, leaves, and brush < 12' Brush > 12' 5 Per Ton $ 44.00 $ ..M 28.50 -- ........23.,..00.,........ $ $ .......... ............ 23...00._... $����.............. 44M.00 ............ $ 10.00 a' s ...........$.������_�_ 25.00 $ ..... .....�............ 40.00....... $ 120.00 $ 20.00 $ 15.00 _ 20.00 _._ .......... ........... ... ..... ..,n -$ 7.80 $ 8.00 Tire 8.00 $ 10.00 - $ . 35.00 Tire + Rim $ ,16.00 $ 30.00 Per Ton ._.........$..........._. 50.00 $ 20.00 .....$ ............. - - ...��..... 30_m 00 Sand, Soil, Rock and Crushed Concrete Sales - City Loaded Screened Sand Select Fill Select Fill - CL Grade Rock and Crushed Concrete Rocks - per 100 lbs Crushed Concrete - per Ton Materials Delivery Fee - per load, within city limits Community Garden Plots Annual Charge per Garden Sub-Lot (16' x 16') Annual Fee Annual Charge per Garden Lot (32'x 32') Annual Fee 1.1 Per Ton .. . . . ..... . . . ..... $ . 4.25 111111111- . . . . . ........... $ 3.75 . .................... . . . $ 4.50 ------ . ..... . . . . ................. 11-1 .......... . . . $ . . . . . .......... . . . 5.00 . $ 8.00 ­ ............... $ 0 00 10. ........ .... . . . . ---------------- . .......... . . ......... $ 25.00 9011--1, 1 Household Hazardous Waste Residential and multi- family household chemicals should not be placed in your refuse container. They include pesticides, herbicides, cleaning chemicals, paints, oils, etc. Residents shall contact Customer Service to receive curbside collection. The chemicals should be kept in their original containers and placed where requested by the Customer Service staff. Electronic Equipment Televisions, monitors, video displays, laptops, similar electronic devices, and certain appliances containing CRT, LED, LCD, plasma, and other electronic displays will be charged fees for the collection, processing, recycling, and disposal of these items. Residential Remodeling Residential remodeling materials include, but are not limited to; lumber, brick, fencing, drywall, and other construction materials. No materials shall exceed 8 feet in length. If the customer has over 4 cubic yards of remodeling materials for collection, the customer is required to utilize a City refuse container of adequate size to contain the materials and maintain a collection service frequency of at least once per month. Residential customers may be provided commercial containers and services at the published commercial rates. Temporary containers may be placed on residential property for up to 30 days. Commercial Cart Collections In areas where commercial cart collection service is available, small quantity waste generators (one cubic yard or less of refuse per week) may contract for weekly cart service. All refuse must be placed in the cart, and the cart set out for collection no later than 7:00 a.m. on the scheduled collection day. A maximum of four carts will be provided; two refuse and two recycling. ,ottune vial Delivery /..I eloca ioti / hiaccessible / Excliartagc l c / [ )�tra Service A fee will be charged for container delivery, relocation, inaccessibility, exchange, or extra collection services. Commercial Same -Day Service Fee The Solid Waste Department Customer Service personnel must receive commercial on- demand service requests prior to 11:00 a.m. in order to provide same day collection service. Commercial Deposit Fee A service deposit is required for commercial containers. Payments to the City that are not received by the due date will result in the customer's deposit being increased during the next billing cycle. The deposit increase will be based upon the customer's billing history. To continue receiving service, the customer is required to remit the previous service balance owed and the increased deposit charges. The General Manager of Solid Waste and Recycling Services, or designee, may adjust the deposit based upon the review of the customer's credit history and other criteria. 7 Shared Commercial Containers Shared commercial container customers must have at least one cubic yard of service per customer per week. The use of shared commercial containers shall be determined by the Solid Waste & Recycling staff. Commercial Service Requirements Equipment Uses - All equipment furnished by the City shall at all times be considered the property of the City, and not private property. Customers shall not modify the equipment or use it for any purpose other than as set forth herein. The City shall repair, as necessary, the equipment furnished. The customer, however, agrees to be solely responsible for any damages to or loss of equipment resulting from any negligent acts or misuse by the customer, customer's agents, employees, or invitees. The City may temporarily replace the size and /or type of equipment contracted with one or more pieces of equipment of equivalent capacity for the purposes of repairing the equipment. Customer agrees that the equipment is in the customer's care, custody, and control at all times. Equipment Location Customers shall provide an accessible location for the equipment that is safe and provides adequate and legal clearance. Customers will be solely responsible for providing access to the equipment at all times and shall not be relieved of payment of any charges for services contracted for, but not provided by the City because of the customer's failure to maintain continuous specified access to the equipment. The equipment location requires a minimum of 4 feet of clearance around all sides of the equipment, if equipment is not located within an enclosure constructed to the City's standards. No container shall be set closer than 4 feet to any structure. The drive path that the City's service truck takes on the customer's premises must provide a minimum clearance on each side of the City's truck of at least 2 feet. Overhead clearance of 25 feet is required for roll -off containers, and 20 feet for front and side load containers. Failure of the customer to provide and maintain these minimum clearances will result in a discontinuation of their service until full clearance access is provided, and will require the customer to pay any and all damage claims, public and private, resulting from servicing the container. Services required to place the container at another location will be charged to the customer. Container Weight Limits Loaded side -load containers shall not exceed a total weight of one ton. Loaded front -load containers shall not exceed a total weight of two tons. Any front load or side load container weighed by the City's staff while on the City vehicle's route, and found to contain excess weight, shall be emptied by the customer to a weight level which is less than or equal to the maximum weight limit for the type of container stated earlier in this paragraph, prior to being serviced. All fines for overweight roll -off container loads are the financial responsibility of the customer and shall be solely paid by the customer. Special Wastes Acceptance of special waste is subject to Federal and State laws and regulations, and the City of Denton has the right to refuse to accept or collect special waste at their discretion. Charges for the collection and disposal of special waste, approved by the General Manager of Solid Waste and Recycling, will be established based on the type of special waste and the regulatory requirements for collection and disposal of the waste X, Unsecured Loads In compliance with State regulations, solid waste loads that are not adequately secured to prevent the material from spilling will be charged an Unsecured Load Fee. Sand, Soil, Rock, and Aggregate Material Sales The Solid Waste Department may sell excess sand, soil, rock, and aggregate materials to the public. Pricing • these materials be established by the General Manager, • • Waste and '- Salvaged a rate to fully recover costs. Sales tax shall be added to the sales price. Materials St*re will be sold at the aDj2roximate salvage value. Landfill Surcharge The current State of Texas assesses a landfill surcharge per (30 TAC 330.602), the surcharge is a pass- through charge collected on behalf of the State of Texas. Any additional assessment or fees established by a governmental entity will be added to the disposal rates and assessed on all waste delivered to the landfill. Miscellaneous Should any other fees • o . g' be established b any other authorized governmental those fees . • /or charges will be .r• • to the monthly rate stated hereinabove in order s,V,?_II recover those additional costs from the customer. Other collection and processing services may be provided at fees established by the department, and approved by the General Manager. The fees established will recoup the cost of service, including special and administrative services provided. Indemnification and Hold Harmless Customer shall defend, indemnify and hold the City harmless from any and all claims at the service location, and any and all claims made by any other person having an interest in the property situated at the service location, for any loss, damage or deterioration of the pavement, surface, subsurface materials, or similar facilities at the service location by reason of use thereof by the City's trucks that are used to service the equipment. Customer further agrees to release, indemnify, defend and hold harmless the City of Denton, Texas, from and against any and all claims of damages related to the furnishing of solid waste and recycling services performed by the City in servicing single- and multi- family living facilities as well as commercial entities. SECTION 2. The General Manager of Solid Waste and Recycling of the City of Denton, or designee, is hereby authorized to deny the use of the City of Denton landfill to any customer who provides false information regarding the origin of, or the composition of the solid waste delivered for disposal to the landfill; or for safety violations committed by a customer within the landfill; or for non - compliance with verbal and written instructions provided to the customer by Solid Waste and Recycling Department personnel at the landfill; or for nonpayment of delinquent funds owed by the customer to the City of Denton, Texas; or for any violation of the law committed by the customer within the landfill; or for any non - compliance by the customer with the Texas Commission on Environmental Quality regulations or policies; or for any non - compliance by the customer with the City of Denton's Code of Ordinances or rules; or for any violation of the written landfill rules by the customer as posted by the Solid Waste and Recycling Department at the entrances to the landfill, from time to time. SECTION 3. It is in the public interest that the provisions of Sections 26 -3, 26 -4, 26 -5, 26- 7, 26 -8(a), and 26 -9 of Article I of Chapter 26 of the City of Denton Code of Ordinances shall expressly apply to City of Denton Solid Waste and Recycling services. SECTION 4. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or the application thereof to any person or under any circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 6. This ordinance shall become effective, charged, and applied to all solid waste and recycling services rendered by the City of Denton on and after October 1, 2015; and a copy of said rates, fees, and charges shall be maintained on file in the Office of the City Secretary of Denton, Texas. PASSED and APPROVED this __ _ day of 2015. a m CHRIS WATTS, MAYOR 10 ATTEST: JENNIFER WALTERS, CITY SECRETARY In awqlvvwvavj• ugowd U: a 11 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -890, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of July 28, August 4, August 6, August 11, August 18 and August 25, 2015. City of Denton Page 1 of 1 Printed on 9/10/2015 CITY OF DENTON CITY COUNCIL MINUTES July 28, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, July 28, 2015 at 1:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tern Gregory, and Council Member Wazny. ABSENT: Mayor Watts Work Session Reports Work Session Item D was considered. D. ID 15 -588 Hold a discussion and provide staff direction with regard to possible amendments to the City Council Rules of Procedure. City Attorney Burgess stated that Council had a prior discussion on April 21st regarding the proposed changes of the rules. Changes made at the prior meeting included editing the rules for clarity; reorganizing two sections dealing with types of meetings and reports from members of the public; deleting time limits section as duplicative and included limits in a substantive section; updating citations; correcting erroneous references; adding a video conferencing provision; adding luncheon meetings to go along with current council practice; adding a corrected recessed meeting provision; adding specific procedures for public hearings; and clarifying the 3/4 voting requirements. Council Member Roden stated that in the videoconferencing section, a notice had to be submitted to the City Manager not less than seven days before the meeting and that the Agenda Committee would consider the request. The request could be denied by the Agenda Committee. He questioned the reason for that provision of denial as in the future it could become political. City Attorney Burgess stated that the seven day notice was to allow staff to be able to provide the necessary equipment to the traveling member and conduct training if not familiar with the equipment and the rules of videoconferencing. In terms of Agenda Committee, the thinking was that if a number of Council Members were traveling it might not be an efficient way to conduct business even though it might be allowed by law. It would allow the Agenda Committee a method to handle those types of situations when more than a quorum was traveling. Council Member Roden stated that while he agreed with the spirit of those provisions he was uncomfortable with the Agenda Committee being the entity to deny the conferencing and requested that portion be rewritten. Council Member Johnson felt that there should be a need for the videoconferencing such as being out of the city and not just wanting to do the meeting at home. He suggested having some absence rules to follow and suggested rewriting the section to state if notified of the need and if approved x days before meeting, then it would be allowed. Remove the wording about the Agenda Committee and limit the number of times it could be used. Council Member Wazny noted consideration of someone who was ill or bedridden and who couldn't attend a meeting for x number of weeks. Don't make the provisions too restrictive. City of Denton City Council Minutes July 28, 2015 Page 2 Mayor Pro Tem Gregory felt that more work was needed on that provision but that considerations should be written on using the videoconferencing provision if unable to attend due to travel or health issues. The Agenda Committee might consider not having a meeting if there were going to be three or four members absent. Council Member Hawkins stated that just because the availability was there, it did not have to be used. City Manager Campbell stated that currently there was only enough equipment for one member to use the provision at one time. City Attorney Burgess continued with time limits for members of the public wishing to address Council. The time limit for a report from members of the public would remain at four minutes and Consent or Regular agenda items would remain at three minutes. Public hearing speakers would have four minutes for citizens with Council able to reduce the time to three minutes if needed. Applicants for a zoning case would have ten minutes with a total of twenty minutes for all applicant representatives. Groups or organizations of four or more present in the Council Chambers with a written designation of a representative would have ten minutes for the representative to speak. Location on the agenda of public reports — the public reports would remain at two separate places on the agenda with three speakers at the beginning of the meeting and any others at the end of the meeting. The six month rotation would continue. In addition, an "open mic" procedure at the beginning of the meeting was added with two speakers allowed to speak on a first come, first served basis. Council Member Wazny liked the idea of two alternatives for speaking - either sign up by Wednesday prior to the meeting or the open mic. She did not like the limit of two speakers for open mic due to pressing topics that might not be listed on the agenda and suggested increasing the number to six. Mayor Pro Tem Gregory asked if there was a situation that was created where a lot of people wanted to speak, could the Council suspend the rules and allow them to speak at the meeting. City Attorney Burgess stated that the rules could be suspended to allow for additional speakers at the open mic section. Council Member Johnson liked the idea of open mic but felt it must be thought through. If there were only an open mic, he felt those would be filled every week because there would be no requirement to be put on the agenda and the topics of discussion would not be known. Council needed to plan on hearing those individuals for whatever amount of time. Council Member Hawkins stated that each speaker would be allowed four minutes. City Attorney Burgess said yes that would be the time limit. Council Member Wazny stated that she would be agreeable to four speakers as a compromise and do a trial to see how it worked. City of Denton City Council Minutes July 28, 2015 Page 3 Council Member Roden stated that the DISD had two fifteen minute time periods with five speakers on a first come, first served basis. Mayor Pro Tem Gregory stated that the consensus of Council seemed to be four open mic spots with Council's ability to suspend rules if needed. City Attorney Burgess clarified that the open mic would only be at the beginning of the meeting. Council agreed with that provision. Council Member Briggs suggested extending the time limit on citizens speaking at public hearings to five minutes. She was not in favor of Council being able to reduce the time back to three minutes if needed. City Attorney Burgess stated that the discussion on that point was on efficiency of the meeting with a specific request from the Council to put that provision back into the rules. Council Member Roden stated that the issue was not simply a matter of the Council's time, it was also the time of the people coming to speak. In order to give everyone a chance to speak, there might be a time when it was necessary to reduce the time to assist the people. Three minutes was a usual amount of time to get a statement made. Council Member Briggs asked how that process would work and questioned if the procedure would be done before the meeting or half way through the meeting. Mayor Pro Tem Gregory felt that as Council came into meeting they would know if there were a lot of speakers or a high amount of blue cards so they would have a sense ahead of time. When an item started, the Mayor could ask Council if they wanted to use the three or four minute rule at that time. He felt that a lot of the time when there were many people on same topic, after the fourth of fifth person, there was very little new information and people repeated what other people had already said. There were also times when a person was allowed to speak longer than their allotted time due to remarks. Council Member Hawkins noted that if there was a lot of repetition, Council could also ask questions to provide more time for a speaker. City Attorney Burgess continued with changes to the location for public comments for the Consent Agenda. The suggestion was to leave as is but add a provision that citizen could contact the City Secretary to ask for an item to be moved to Individual Consideration. Mayor Pro Tem Gregory noted that this provision would not prohibit a council member from also pulling in item for individual consideration. Council Member Wazny asked for a clarification on how citizens could speak in a Work Session. Mayor Pro Tem Gregory stated that a citizen would complete a blue speaker card regarding the Consent Agenda item in question. Otherwise a citizen would not be able to speak at the Work Session unless authorized by Council. City of Denton City Council Minutes July 28, 2015 Page 4 Council Member Wazny felt that a citizen might want to speak to a Work Session discussion but currently was unable to speak. She felt there had to be a better way to recognize citizens on non - Consent Agenda items. She suggested Council consider a provision in the future to allow citizens to speak at Work Sessions. City Manager Campbell stated that Work Sessions were generally a place where Council received information from staff on items that generally required no action on them. It was a venue for debate among the Council on information that they had requested. The discussion items were posted and Council could invite citizens to speak but it was not a right for citizens to speak at a Work Session. Council Member Roden felt this would be a good topic for the Council Committee on Citizen Engagement to consider on how to allow such a process. The process would have to be such to allow for the discussion to be efficient. Council Member Hawkins felt that there were times when citizens did not like a 7 -0 vote and did not know about all the work done in Work Session before the actual vote. Council Member Johnson stated that the trick would be to determine how to recognize the public. The open mic concept might work for the Work Session also but not when Council was in the process of discussing an item. City Attorney Burgess stated that at the April 15'h meeting, Council asked for a clarification on "consensus direction" which had been incorporated and to also clarify what constituted a 3/4 vote. There was one added provisions to the rules that board /commission minutes would comport with City Secretary procedures as it was felt that it would be more efficient if all of the board /commissions followed the City Secretary procedures. Council considered Work Session Item B. B. ID 15 -607 Receive an update, hold a discussion, and provide staff direction on the Road Impact Fee implementation. PS Arora, Wastewater Division Manager, stated that his presentation would cover a Ryan Road example of a roadway impact fee plus ordinance /policy discussions. The Ryan Road analysis used existing developments on Ryan Road and those projects which were in the process of development on Ryan Road. This resulted in three impact fee rate scenarios. The Ryan Road analysis for land use was reviewed. A detail of existing developments for rough proportionality versus an impact fee was demonstrated. Council discussed the figures of the detail and how they applied to the developments. A summary of rough proportionality versus impact fee showed that (1) existing residential developments paid nothing on Ryan Road; (2) existing residential developments would have paid for under rough proportionality than proposed impact fee options; (3) rough proportionality was based on frontage resulting in uneven fees by development; and (4) other developments could pool money towards Ryan Road. It was noted that the adoption process per State law was four months. The time required to adopt the fees would be two months for land use and CIP adoption and two City of Denton City Council Minutes July 28, 2015 Page 5 months for an ordinance adoption. A majority of the ordinance would be based on statutory language but there were some policy decisions that would have to be made. Those included a determination of the collection amount, incentives, credits and rough proportionality. Council Member Wazny asked when the impact fees would be paid. Arora stated that the impact fee would be determined when platted. A final plat would have the final amount. Mayor Watts arrived at the meeting. Maximum versus collected fees with area cities and a comparison of roadway impact fee comparison with area cities was presented. In determining the collection rate, several options to consider were what should be the rate for a single family home, should non - residential get a discount, should the fee be consistent across the City and should there be incentives provided in defined areas. Council discussed zones throughout the city, types of zones and whether land uses would be charged the same throughout all of the zones or specify a charge in different zones to encourage development of a certain type in each zone. Council requested staff research if other cities had those types of incentives within specific zones. Two types of incentives centered on location in an established area such as a TIF or an economic development incentive with clear criteria for major investments. Council discussed the TIF and how it would relate to the fee. Arora reviewed an extraordinary investment discount. Impact fee -based incentives could be considered if the real and personal property project value met certain values. Credits for impact fees could be given when infrastructure was built or right -of -way was dedicated for thoroughfares. Appraised values applied would be based on DCAD values. The methodology for credit could be either a credit agreement between the City and a developer or credit in dollars for eligible roadway costs. Council discussed alternate methods for determining appraised values rather than just using the DCAD. Rough proportionality was based on road construction requirements based on the DDC for perimeter street and /or the traffic impact analysis. The Impact Fee Estimator Tool calculated rough proportionality. It would replace the current rough proportionality model in the DDC. For developments that needed extensions of system facilities the impact fee would be credited. Impact fee credits would be applied based on the calculated maximum fee for the service area. Consensus of the Council was to hold an additional work session for further discussion and provide additional examples of costs for projects. A. ID 15 -587 Receive a report, hold a discussion and provide staff direction on street pavement conditions and recommended maintenance funding requirements. City of Denton City Council Minutes July 28, 2015 Page 6 Tim Fisher, Water Division Manager, stated that the presentation on this item would include a history of pavement management system and comprehensive street condition survey; an overview of past funding related to street maintenance, repair and reconstruction; overview of the 2008 and 2015 Citizen's Survey; overview of 2012 and 2014 bond programs related to street construction; update from Infrastructure Management Services on the 2015 Comprehensive Street Condition Survey; and staff recommendations related to the pavement management program, future performance goals and funding strategies. History of Pavement Management System - three comprehensive payment condition surveys were performed. The Cartegraph Work Order and Pavement Management Software System were used. Conclusions from the 2003 and 2009 studies indicated that street conditions were declining rapidly due to underfunding of street maintenance. The average OCI in 2003 was 69 while the average OCI in 2009 was 63. The distribution of street OCI conditions were atypical in that growth in the City was adding many new streets with very high OCI numbers while older streets were in much poorer condition and in rapid decline. 2008 and 2015 Citizen Surveys — in 2008 street maintenance ranked lowest of all departments and in 2015 the rating was even less. 2012 and 2014 Voter Approved Street Reconstruction bond packages — the 2012 bond program was a streets only bond package and street reconstruction only. Fifty nine street segments had been completed with fourteen other segments under constructions. The program was slightly behind schedule and was below budget at this time. 2014 bond program— this was a $98 million program over six years and funded 195 street segments which was about 28% of unfunded street segments. Stephen Smith, Infrastructure Management Services, presented the 2015 state of the roadway network in Denton. He reviewed information on scale of investment indicated that the OCI was currently at 63 which had not declined from previous years. The concern was the backlog on streets that needed total repair. The importance of pavement management was presented in order to maintain pavements in a serviceable condition over a given period of time. Benefits of pavement management were maximized when funding was close to a steady state level for the highest cost benefit. Top down and bottom up support was critical. The principles of early intervention with light weight treatment needed to be accepted. Tools to rate the roads - objective surveys focused on the conditions of (1) fatigue /alligator cracking, (2) wheel path rutting, (3) cracking, (4) distortion and weathering, (5) patching and potholes, (6) roughness, (7) raveling and (8) bleeding. A very poor OCI was past the point of overlay based rehabilitation with a failed base and subgrade. Rehabilitation was often driven by citizen complaints with safety becoming a concern at a very low OCL A poor to marginal OCI had base failures, rutting at intersections, extensive cracking and patching, and was a high priority to avoid reconstruction. It was the last opportunity for surface base rehabilitation. A fair OCI had progressive cracking, few base failures, localized distresses, and were primarily non -load related. The streets were at an optimum timing for thin to moderate overlay. Good OCI ratings had few localized distresses minimal base failures. The greatest cost benefit was thinner strategies, less crown buildup, less intrusive rehabilitation and maintained existing drainage. Very good OCI had City of Denton City Council Minutes July 28, 2015 Page 7 very few distresses, no rutting, had a smooth ride, and was non - weathered with no base failures. An excellent OCI was a like new condition, with little or no distress. Denton OCI results for 2015 — Denton had atypical conditions as it had older streets plus newer streets to work with. The need was to address the massive amounts of poor streets that had an odd distribution of concrete and asphalt. The current backlog was 14% with a target backlog of 12 %. Excellent streets should be about 15% with Denton at 25 %. The recommended long term goal was to control the backlog to below 12% as it was imperative to arrest the amount and growth of backlog. The City should invest in the overall network to maintain the average OCI about 65. The goal was to identify an annual budget, examine the effects of current funding levels and any shortfalls, and prevent deterioration in pavement quality. Pavement management was priority based, not worse - first. The target OCI would cost $14 million/year to maintain a 65 OCL The money did not include growth, inflation, conversion from gravel to pavement, level of service increases or right of way maintenance. It also did not include ADA compliance and was not for sidewalks. Staff recommendations — (1) continue periodic comprehensive street condition surveys on a 5 to 6 year interval (2) continue to utilize the Cartegraph Pavement View and Pavement View Plus to manage the street maintenance program, (3) continue to transition Utility Franchise fee income stream to fully fund the Street Department, (4) target performance goals and objectives for maintenance of the street assets to have a system wide average OCI of between 65 to 70 and manage the reconstruction backlog less than 12 %, (5) the Street Improvement Fund should include 40% to 45% funding for non -OCI street related expenditures to cover sidewalks, pot hole repairs, base failures, and (6) transition away from dependence on debt funding for managing the reconstruction backlog once it was under operation and maintenance funding levels are increased and sustainable. Through improving the average OCI in the street system and reducing reconstruction backlog, the future costs to maintain city streets would actually be lower. Council Member Gregory noted that funding at $12 million for the OCI would keep it steady but $14 million would see an increase in the overall OCI. Fisher stated correct but that there would still be a gap in order to maintain the current OCI. Council Member Johnson asked if new roads were included in the OCI rating. Fisher replied correct. Council Member Johnson stated that he was not sure the average number should be what was focused on because of all the new streets included which could produce a false positive. He suggested focusing on the percentage or segments below 40. Council Member Wazny asked for the cost of the study. Fisher stated that it was $200,000 over 6 years and included a sidewalk inventory and parking lot survey. City of Denton City Council Minutes July 28, 2015 Page 8 Council Member Wazny stated that the City had ignored roads for years and was in this spot now because it did not spend the money. She suggested that for the next survey a company in Texas be used for the study. Council Member Roden stated that he would like to see a 10 year forecast on how to solve the problem. A policy question was maintaining the best streets in the downtown area and around the universities. He felt it was hard for citizens to find out this information and suggested putting out information when certain streets were going to be fixed. Mayor Pro Tem Gregory suggested putting the PowerPoint on line. Council needed to make hard decisions regarding the funding and prioritizing of which streets to do. Council Member Johnson suggested spending time talking about the most impactful streets as they related to visitors, etc. Mayor Watts stated that he was an advocate for a potential tax decrease and felt that Council needed to look realistically when considering funding. C. DCA14 -0009k Hold a discussion on complementary amendments to the Denton Development Code; specifically Subchapters 5, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures; in order to reconcile Denton's gas well regulations with House Bill 40 that was signed into law on May 18, 2015. This item was not considered. Following the completion of the Work Session, the City Council convened in a Closed Meeting at 5:30 p.m. to consider the specific items listed below. Closed Meeting: A. ID 15 -473 Consultation with Attorney - Under Texas Government Code, Section 551.071. Discuss, deliberate, and receive information from the City's attorneys pertaining to the negotiation and legal consequences of meet and confer agreements with the Police and Fire Associations, and provide the City's attorneys with direction, where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation. B. ID 15 -545 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: an 10.771 acre City of Denton City Council Minutes July 28, 2015 Page 9 tract situated in the R. Longbottom Survey, Abstract No. 775 generally situated in the northwest quadrant at the intersection of U.S. Highway 288 and East University Drive (U.S. Hwy. 380), in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, switch stations or 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. (Purple route, Prescott) This item was not considered. C. ID 15 -643 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 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. This item was not considered. D. ID 15 -584 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 City of Denton City Council Minutes July 28, 2015 Page 10 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. Special Called Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. 1. PUBLIC HEARINGS A. DCA14 -00091 Hold a public hearing and consider adoption of an ordinance amending Subchapters 5, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 00091). The Planning and Zoning Commission recommends approval (7 -0), with amendments. Darren Groth, Gas Well Administrator, stated that his presentation would include background information, the legal framework, implementation — zoning, implementation - gas well standards, and Planning and Zoning Commission recommendations. Lessons learned over the years showed that setbacks were leading concerns for all parties, mineral/surface development should minimize impacts, existing sites versus new sites, and the concerns over HB 40. The background information on the process since December 16, 2014 was reviewed. HB40 impacted municipal regulatory oversight for gas regulations indicating that authority to regulate an oil and gas operation was expressly preempted unless the activity fell under narrowly drawn exceptions and met a four part test. The four part test included (1) regulated only aboveground activity related to an oil and gas operation that occurred at or above the surface of the ground, (2) was commercially reasonable, (3) did not effectively prohibit an oil and gas operation conducted by a reasonably prudent operator, and (4) was not otherwise preempted by state or federal law. The definition of commercially reasonable was reviewed and noted that an ordinance considered commercially reasonable would be one that had been in effect for at least 5 years and had allowed the oil and gas operations at issue to continue during that period. City Attorney Burgess noted that an ordinance, although in play for 5 years, whether or not it was commercially reasonable, had to be determined by a court of law and could be overcome by other evidence. The city of Fort Worth's ordinance had received favorable consideration at the Texas legislature. That ordinance was used as a model for Denton's revisions, where feasible. Groth stated that aboveground surface activities a city could regulate included fire and emergency response, traffic, lights, noise, imposing notice and reasonable setback requirements. The timeline associated with consideration of the ordinance was reviewed. It was noted that the moratorium would expire on August 18''. City of Denton City Council Minutes July 28, 2015 Page 11 Implementation - zoning — the framework regulations for setbacks, permit procedures, and relief measures had been placed in the Denton Development Code (DDC). Site standards would remain in the DDC with a differentiation of existing sites from new sites. Master Planned Communities and Planned Development regulations would be in accordance with their approved plan. Council Member Roden asked if the six areas noted were followed, would they also have to meet the commercially reasonable test. City Attorney Burgess stated that HB 40 did not give cities the authority to regulate these items. All of those must be regulated in a manner that is commercially reasonable under HB 40. Setbacks — a setback was the distance between drilling and production sites and protected uses or residential subdivision plats. There were three types of setbacks — drilling and production site setbacks, reverse setbacks and minimum setbacks by variance or waiver. With new and existing sites the new site setback was based on zoning district categories and differentiated separation standards for new sites and existing sites. There was uniform treatment for existing sites across zoning district categories. The new site setbacks as proposed by staff and the ones proposed by the Planning and Zoning Commission for residential, commercial, industrial and MPC and PD districts were reviewed. These were measured from the edge of gas well development site plan boundary. Mayor Pro Tem Gregory asked for an explanation of the different categories between site and minimum setback. Groth stated that a property owner would have to obtain a waiver to consent to a reduced setback. If 100% of the property owners did not agree, the waiver would go to the Zoning Board of Adjustment (ZBA) and the ZBA could reduce the setback. In some instances, the gas operators could give up a site such as two near each other to grant a reduced setback if one was given up for future drilling. Mayor Pro Tem Gregory asked if there were guidelines in the proposed ordinance for the ZBA to use to make such a determination. He questioned if the ZBA could grant a smaller setback but not down to the minimum. Groth stated that there were some criteria in the ordinance but also had specific criteria for variances. City Attorney Burgess stated that the DDC had specific guidelines and whether lesser setbacks could go any distance but not less than minimum. Mayor Pro Tem Gregory suggested that before the next meeting criteria for the ZBA to make a variance should be developed. Council Member Briggs asked if there was a situation where a developer could automatically get a variance. Groth stated that the Planning and Zoning Commission recommendation was to not have a development reduction requirement. He presented the Commission proposal for a reverse setback. City of Denton City Council Minutes July 28, 2015 Page 12 The Commission had recommended 225 feet for a reverse setback but the motion had been made with 500 feet measured from the construction edge or GWDSP boundary. City Attorney Burgess stated that all of her notes indicated a reverse setback at 225 and the 500 feet was an error. Groth continued with setback reduction procedures. The procedures would apply to site setbacks in order to reduce the distance down to the minimum and involved property owner waivers, Board of Adjustment variances, an administrative variance allowed under limited circumstances, and enhanced performance standards. Mayor Pro Tem Gregory asked if the administrative variance was specified in the ordinance or was just an understanding of procedures. Groth stated that there were strict criteria in the ordinance. The sequence for gas well permitting was presented. In terms of drilling and production site, the size of the site would be limited to 2 acres, unless there was a need for larger site up maximum size of 5 acres. Expiration dates would still apply. Environmental and operational functions would be in compliance with federal and state regulations. Drilling and production standards would remain in the DDC such as site layout and design; development, operations, and equipment; fire safety and emergency response; nuisance prevention and mitigation; and enhanced mitigation, when applicable. Enhanced performance standards applied when a setback distance was reduced below the "site" distance and contained the three categories of noise mitigation, fencing and screening, and production monitoring. Groth stated that staff had provided two versions of the proposed ordinance. One was a redline version that reflected the Commissions policy recommendations regarding setbacks and variances, along with staff's non - policy recommended changes. The second was a clean version that reflected staff's policy recommendations regarding setbacks and variances, along with staff's non - policy recommended changes. Council Member Roden questioned how reverse setbacks were determined and how adequate notification was provided to potential buyers of a piece of property. Groth stated that new requirements for notification for platting included a note on the plat, a depiction on the plat lot survey and a location of site to the lot. There was also a declaration of restricted covenants and requirements for notice when the applications were filed. The impacted area received a notice of application plus signage on the site of the existing well that it could possibly be reworked. Mayor Pro Tem Gregory asked about the section on watershed protection and references to flood way and flood fringe as he did not see definitions of those. Groth stated that those were not currently included in the ordinance. Mayor Pro Tem Gregory stated that he would like those included in the ordinance. He did see a reference regarding fencing around an open pit but he did not think open pits were allowed. City of Denton City Council Minutes July 28, 2015 Page 13 Groth stated that it referenced existing open pits and that looped open pits were not allowed. Mayor Pro Tem Gregory stated that originally there were general rules regarding noise mitigation and then they got very specific which made them unenforceable. The regulations were then changed to match the same rules as everyone had. Now it appeared that the regulations were going back to being very specific. He was concerned about the enforceability of those and questioned if a legal opinion was needed in either open or closed session. Groth stated that the regulations had very strict requirements and then was changed to match State law. Mayor Pro Tem Gregory stated that he needed an explanation as to why it appeared that the course was changing again as he was concerned about enforceability. City Attorney Burgess stated that the ordinance did not impact the State law provision. It still existed in State law and could be used as a tool from the State law. Mayor Pro Tem Gregory asked about the provision about a different type of sign to go on a drilling site. All of the existing wells had to place those signs with the new wording. Council Member Wazny stated that there had been no discussion regarding master planned communities or planned developments. These were large areas where the new regulations would not apply such as Cole Ranch, Hunter Ranch and Robson Ranch. Those areas would be grandfathered in and the new regulations would not apply. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Sharon Wilson, 101 North Greenfield, Allen — in support Adam Briggle, 1315 Dartmouth, Denton — in support' Christie Wood, 1020 Coit, Denton — in opposition AC Adam, 1806 Andover Lane, Corinth — in support Dalton Allen, 111 Lexington, Denton — in support Calvin Tillman, 100 Jerry Street, Aubrey — in opposition Council questioned Tillman about provisions in the Dish ordinance in terms of measuring setbacks, reverse setbacks, number of wells in Dish and setbacks from the well head or equipment. Mike Cheves, 900 Jeffrey, Denton — in opposition Jodi Ismert, 819 Anna, Denton — in opposition Jerry Yensan, 4238 I35 North, Denton— in support Ron Seifert, 1400 Morin, Denton — in support Elida Tamez, 1700 Willowwood, Denton — in opposition Theron Palmer, 1700 Willowwood, Denton, - in opposition Agatha Beins, 1901 Panhandle, Denton — in opposition Branden Finley, 806 Denton, Denton — in opposition Deborah Armintor, 2003 Mistywood, Denton — in opposition Shula Armintor, 2003 Mistywood Lane, Denton — in opposition City of Denton City Council Minutes July 28, 2015 Page 14 Lee Ramsey, 525 Loop 288, Denton — in support Sandy Mattox, 4008 Vinyard, Denton — in opposition Tara Linn Hunter, 602 Woodland, Denton — in opposition Rodney Love, 700 N. Austin, Denton — in opposition Brad Shelton, 3000 Carmel, Denton — in support Ed Soph, 1620 Victoria, Denton — in opposition Kelli Barr, 1005 W. Hickory, Denton — in support Charles Brown, 2908 Pennsylvania, Denton — in support Nicole Chochrek, 1223 Highland Park Road, Denton — in opposition Michael Hennen, 724 Thomas, Denton - in opposition Chance Wilson, 1209 CR 1304, Bridgeport — undecided Ed Ireland, 777 Taylor, Fort Worth — neutral Chris Rosprim, 2113 Emerson, Denton — in support Morgan Larson, 2210 Westwood, Denton- in opposition Emily Smith, 2105 Stella, Denton — in support Alison Trapp, 3137 Crisoforo, Denton — in opposition Comment Cards were submitted by: JB and Shirley Haisler, 1200 Cowling Sanger - in support Larry Beck, 915 E. Sherman, Denton — in opposition Susan Vaughn, 1330 Phoenix, Denton - in opposition Todd Ellis, 3437 Crisoforo, Denton — in opposition Paula Collins, 1223 Highland Park Road, Denton — in opposition Sharon Spiess, 7501 Stallion, Denton — in opposition The Mayor closed the public hearing. Council Member Wazny stated that Council was listening to citizens and was not going to vote on the ordinance at this meeting. She would consider what the Planning and Zoning Commission had recommended and what citizens had said. She motioned to postpone the item to a date certain of August 4th. Mayor Pro Tem Gregory asked for the number of gas well inspectors. Groth stated that there were only two at this point. There were 153 gas wells to inspect at least 2 times per year. Two annual inspections were required. Council Member Briggs stated that she did not support a weaker ordinance and felt other cities were watching Denton to see what it was going to do. If the ordinance was made weaker, it would be validating HB 40. Mayor Pro Tem Gregory stated that he was not comfortable with the setbacks as well as production tanks on the edge of a site. He wanted more awareness of setbacks for flashpoints, etc. Council Member Wazny motioned, Mayor Pro Tem Gregory seconded to table consideration until a date certain of August 4, 2015. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs City of Denton City Council Minutes July 28, 2015 Page 15 "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 2. 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. Mayor Watts asked for a table top exercise discussion with DISD, Fire and County for a plan in evacuating schools in case of a gas emergency. B. Possible Continuation of Closed Meeting topics, above posted. Mayor Watts announced that Council would be returning to the Closed Meeting to continue the discussion of Closed Meeting Item D. Council went into Closed Meeting at 11:40 p.m. With no further business, Council returned to Open Session at 1:08 a.m. and adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES August 4, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, August 4, 2015 at 1:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tern Gregory, and Council Member Wazny. ABSENT: Mayor Watts Mayor Pro Tern Gregory questioned Council about moving the gas well ordinance to the last item of the meeting. Consensus of the Council was to move the item. 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 August 4, 2015. Council Member Johnson questioned Consent Agenda Item H and if any of the local universities had the same capabilities and if so, provide them with the same program. Jon Fortune, Assistant City Manager, stated that this contract was a continuation of work started with them but UTA had a program geared to do that. Work Session Reports A. ID 15 -625 Receive a report, hold a discussion, and give staff direction regarding nominations to the City's Boards and Commissions. City Secretary Walters noted the nominations that had been submitted and the vacancies that still existed. Council discussed the nominations and noted that they would be voted on at the regular meeting. B. DCA14 -0009L Hold a discussion on complementary amendments to the Denton Development Code; specifically Subchapters 5, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures; in order to reconcile Denton's gas well regulations with House Bill 40 that was signed into law on May 18, 2015. This item was not considered. Following the completion of the Work Session, the City Council convened in a Closed Meeting at 1:10 p.m. to consider the specific items listed below under the Closed Meeting section of this agenda. Closed Meeting: City of Denton City Council Minutes August 4, 2015 Page 2 A. ID 15 -661 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: 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, switch stations or 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.[ID 15 -547] (Purple route, Prescott) B. ID 15 -639 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. C. ID 15 -645 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. D. ID 15 -660 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. This item was not considered. City of Denton City Council Minutes August 4, 2015 Page 3 E. ID 15 -677 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 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 -585 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. Mayor Pro Tem Gregory announced that the gas wells ordinance would be considered at the end of the meeting. 1. PLEDGE OF ALLEGIANCE City of Denton City Council Minutes August 4, 2015 Page 4 The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS /PRESENTATIONS 3. CITIZEN REPORTS A. ID 15 -646 Monica Jones regarding a complaint on Animal Control and Code Enforcement. Ms. Jones was not present at the meeting. 4. CONSENT AGENDA Council Member Hawkins motioned, Council Member Roden seconded to adopt the Consent Agenda Items A -P with the exception of Item D and E for separate consideration. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Confirmed the re- appointment as noted below. A. ID 15 -515 Consider and confirm the re- appointment by the City Manager of Paul Abbott to the Civil Service Commission. Ordinance No. 2015 -220 B. ID 15 -547 Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute a Contract of Sale between the City of Denton, Texas(" City"), as buyer, and Prescott Interests, LTD., a Texas Limited Partnership ( "Owner "), as seller, to acquire fee title to an approximate 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., ( "Property Interest ") for the purchase price of One Million and Seven Hundred Thousand Dollars and no cents ($1,700,000.00) and other consideration, as prescribed in the Contract of Sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. Ordinance No. 2015 -221 C. ID 15 -555 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for street milling services for the City of Denton; and providing an effective date (RFP 5846- awarded to Dustrol, Inc. in the three (3) year not -to- exceed amount of $400,000). Resolution No. R2015 -018 F. ID 15 -590 Consider approval of a resolution approving the 2014 Tax Increment Reinvestment Zone Number Two (Westpark TIRZ) Annual Report; and declaring an effective date. City of Denton City Council Minutes August 4, 2015 Page 5 Ordinance No. 2015 -224 G. ID 15 -599 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for construction of Poured in Place Retaining Walls for the City of Denton Kings Row Substation Addition; providing for the expenditure of funds therefor; and providing an effective date (RFP 5810- awarded to DynaGrid Construction Group, LLC in the not -to- exceed amount of amount of $599,683.30). The Public Utilities Board recommends approval (4 -0). Ordinance No. 2015 -225 H. ID 15 -600 Consider adoption of an ordinance of the City of Denton, Texas approving an Interagency Cooperation Contract by and between the University of Texas at Arlington and the City of Denton, Texas for a term of three years to provide landfill sampling and testing of mined materials; monitoring gas emissions during the mining process; monitoring and characterizing storm water and leachate; evaluating and recommending a dust management system for mining operations; investigate the mined samples; investigate the energy potential of the mined materials; develop landfill mining protocol; municipal solid waste (MSW) sampling and evaluation; and determine moisture content analysis during the ongoing Enhanced Leachate Recirculation (ELR) operations for the City of Denton landfill in an amount not -to- exceed $399,806; providing for retroactive approval, confirmation and ratification thereof, authorizing the City Manager or his designee to execute said contract on behalf of the City of Denton; providing for the expenditure of funds; providing an effective date (File 5892). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2015 -226 L ID 15 -601 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric substation and transmission line easement site preparation services for the City of Denton; and providing an effective date (RFP 5761- awarded to Mann Robinson and Son, Inc. in the three (3) year not - to- exceed amount of $21,990,000). The Public Utilities Board recommends approval (4 -0). Ordinance No. 2015 -227 J. ID 15 -622 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Fred Moore Day Nursery School; authorizing the expenditure of funds; and providing for an effective date. (1,475) Ordinance No. 2015 -228 K. ID 15 -631 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas, and Giving Hope, INC. for funds that will be used for Homeless Prevention Assistance; providing for the expenditure of funds; and providing for an effective date. ($600) City of Denton City Council Minutes August 4, 2015 Page 6 Ordinance No. 2015 -229 L. ID 15 -634 Consider adoption of an ordinance authorizing an agreement between the City of Denton, Texas and the Denton Black Chamber of Commerce; authorizing the expenditure of funds; and providing for an effective date. ($950) Approved the minutes listed below. M. ID 15 -670 Consider approval of the minutes of June 23 and June 30, 2015. Ordinance No. 2015 -230 N. ID 15 -678 Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2014 -423, prescribing the number of positions in each classification of police officer; providing a repealer clause; and declaring an effective date. Ordinance No. 2015 -231 O. ID 15 -680 Consider adoption of an ordinance repealing Ordinance No. 2011 -038 and enacting a new Section 2 -29 of the City of Denton Code of Ordinances relating to Rules of Procedure for the City Council of the City of Denton; and declaring an effective date. Ordinance No. 2015 -232 P. ID 15 -681 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to make an application with the Texas Auto Burglary and Theft Prevention Authority for a grant to focus on auto theft and auto burglary and take all other actions necessary to obtain and implement the program; and providing for an effective date. Item D was considered. Ordinance No. 2015 -222 D. ID 15 -579 Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2014 -2015 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the Electric Fund of ten million dollars ($10,000,000) for the purpose of paying off outstanding debt, and the Materials Management Fund of two million seven hundred thousand dollars ($2,700,000) for the purpose of purchasing additional material inventory related to increased capital construction throughout the city; declaring a municipal purpose; providing a severability clause, an open meetings clause and an effective date. The Audit/Finance Committee recommends approval (3 -0). Chuck Springer, Director of Finance, stated that Item D was a budget amendment for two departments. Materials Management would have a budget increase in order to cover warehouse purchases and sales for the CIP. The second amendment was amending the DME operating budget for use of funds to pay down some of the TMPA debt as opposed to cash. Not all of the dollars might be needed but staff wanted to be sure there was enough to cover the payoff. City of Denton City Council Minutes August 4, 2015 Page 7 Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -223 E. ID 15 -580 Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $40,860,000 in principal amount of "City of Denton General Obligation Refunding Bonds, Series 2015" (including up to $17,645,000 for Electric Fund activities, up to $17,410,000 for Water Fund Activities, and up to $5,805,000 for Wastewater Fund activities); authorizing the issuance of the Bonds; delegating the authority to certain City officials to execute certain documents relating to the sale of the Bonds; approving and authorizing instruments and procedures relating to said Bonds; and enacting other provisions relating to the subject. The Audit/Finance Committee recommends approval (3 -0). Chuck Springer, Director of Finance, stated that this item authorized refunding bonds for the utility system. A refinancing TMPA debt payment was due in the upcoming fiscal year. $10 million plus $3 million in bonds would be used to refinance to 2024 to level out the impact on rate payers. The debt schedule would remain the same and reduced the interest for a total savings over $3 million. Council Member Roden motioned, Council Member Johnson seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -624 Consider nominations /appointments to the City's Boards and Commissions: Airport Advisory Board; Animal Shelter Advisory Committee; Community Development Advisory Committee; Health & Building Standards Commission; Historic Landmark Commission; Human Services Advisory Committee; Library Board; Parks, Recreation and Beautification Board; Planning and Zoning Commission; Public Art Committee; Public Utilities Board; Traffic Safety Commission; and Zoning Board of Adjustment. Council Member Roden motioned, Council Member Johnson seconded to adopt the nominations discussed during the Work Session except for the Animal Shelter Advisory Board and the Zoning Board of Adjustment. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Council considered the nominations for the Animal Shelter Advisory Board. Council Member Wazny stated that her nomination, David Zoltner, was a licensed practicing veterinarian, a longtime resident and had volunteered for the positon. City of Denton City Council Minutes August 4, 2015 Page 8 Council Member Wazny motioned, Council Member Briggs seconded to approve the nomination for David Zoltner. On roll call vote, Council Member Briggs "aye ", and Council Member Wazny "aye ". Council Member Roden "nay ", Council Member Johnson "nay ", Council Member Hawkins "nay ", and Mayor Pro Tem Gregory "nay ". Motion failed with a 2 -4 vote. Council Member Roden motioned, Council Member Hawkins seconded to approve the nomination of Kathleen Duffy to the Animal Shelter Advisory Committee. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Council Member Roden motioned, Council Member Johnson seconded to approve the nominations of Sara Bagheri, Greg Sawko, Jchon Paradise, John Morris and Connie Baker to the Zoning Board of Adjustment. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye" and Council Member Wazny "aye ". Motion carried unanimously. Council Member Roden motioned, Council Member Johnson seconded to approve the nomination of Marshall Surratt to the Zoning Board of Adjustment. Council Member Hawkins noted that this was a reappointment and that Mr. Surratt had good attendance at the meetings. Council Member Wazny clarified that the only way to look at Candidate 42 would be if Candidate 41 did not pass. Council Member Johnson indicated that Council was not saying one candidate was better than the other. It was a situation where this was a reappointment with no missed meeting and a willingness to continue. Council Member Briggs indicated that her nomination was Cathy McMullen. On roll call vote to appoint Marshall Surratt to the Zoning Board of Adjustment, , Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", and Mayor Pro Tem Gregory "aye ", Council Member Briggs "nay ", and Council Member Wazny "nay ". Motion carried with a 4 -2 vote. 6. PUBLIC HEARINGS Ordinance No. 2015 -234 A. Z15 -0013 Hold a public hearing and consider a rezoning from a Neighborhood Residential 4 (NR -4) district to a Community Mixed Use General (CM -G) district on approximately 8.04 acres of land generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. The Planning and Zoning Commission recommends approval (5 -0). City of Denton City Council Minutes August 4, 2015 Page 9 Aimee Bissett, Director of Planning and Development, presented the details of the proposal. This was a rezoning for a Sprouts Shopping Center. She presented the current zoning, proposed zoning, future land use map, and background of the proposal. Considerations included residential growth, mobility plan, FEMA Floodplain, and Teasley widening. She reviewed the criteria for approval which the proposal met. The Planning and Zoning Commission and staff recommended approval. Council Member Hawkins stated that only the zoning was being considered at this meeting. Bissett stated that was correct. Council Member Roden asked about an estimated time for completion. Bill Winkelmann, Civil Engineer on the project, stated that it was hoped to have it completed in September. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -235 B. Z15 -0018 Hold a public hearing and consider a rezoning from a Neighborhood Residential 2 (NR -2) district to Community Mixed Use General (CM -G) district on approximately 1.7 acres of land generally located on the east side of North Bonnie Brae Street, approximately 475 feet north of West University Drive (U.S. 380). The Planning and Zoning Commission recommends approval of the request (5 -0). Aimee Bissett, Director of Planning and Development, presented the details on the proposal for the North Lakes Shopping Center. She presented the location, existing and proposed zoning, future land use map, and consideration of the property. The criteria for approval was reviewed which the property met. The Planning and Zoning Commission and staff recommended approval. The Mayor opened the public hearing No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Wazny seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member City of Denton City Council Minutes August 4, 2015 Page 10 Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -236 C. Z15 -0014 & S15 -0005 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding an initial zoning district and use classification of Neighborhood Residential 1 (NR -1) and a Specific Use Permit (SUP) for a Semi - Public Hall, Club, or Lodge. The approximately 10.8 acre site is generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. (Z15 -0014 and S15- 0005). The Planning and Zoning Commission recommended approval of this request (5 -0), subject to conditions. Aimee Bissett, Director of Planning and Development, presented the details of the proposal for an initial zoning of NR -1 and a Specific Use Permit to allow the Denton Police Association to use the property. The location would be used by officers on duty during meal breaks and for general membership meetings which was not permitted in the RD -5X zoning. She presented the location of the proposal, current zoning, surrounding zoning, surrounding land uses, and future land uses. The site had an existing structure that would remain plus an addition of 400 feet for restrooms. If approved the site must comply with applicable DDC requirements for a building permit. The criteria for approval were reviewed which the proposal met and the criteria for the specific use permit which the proposal also met. The staff recommended approval subject to conditions and the Planning and Zoning Commission's conditions. The Mayor opened the public hearing. Virginia Nichols, 1601 Oak Shore Court, Cross Roads, spoke in favor. The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Wazny seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Council considered Item B. B. DCA14 -0009j Consider adoption of an ordinance amending Subchapters 5, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009j). The Planning and Zoning Commission recommends approval (7 -0), with amendments. City of Denton City Council Minutes August 4, 2015 Page 11 Darren Groth, Gas Well Administrator, presented the details regarding the gas well ordinance revisions. His presentation would include a discussion of actions taken by the Planning and Zoning Commission and City Council, a discussion on the posted draft ordinance and changes from the current ordinance. The issue was remanded to the Planning and Zoning Commission which recommended the current ordinance with amendments. There was significant discussion during both hearings which resulted in revisions based on comments from stakeholders, public input, and both the Planning and Zoning Commission and Council deliberations. This resulted in a draft ordinance which was posted to the City's website on Friday, July 13, 2015. Changes from the current ordinance — Denton Development Code (DDC) Section 35.5.10 was a new section added to zoning chapter of the DDC dealing with zoning setbacks. Setbacks were based on the location of the drilling and production site by zoning district. New well setbacks remained at 1,000 feet in residential and commercial zoning districts. It clearly defined measurements for existing sites. The setbacks were measured from the edge of the gas well development site pad (GWDSP) boundary. In industrial districts the setbacks for existing sites would be 250 feet. In all other districts, the setback for the site of an existing site would be 500 feet with a minimum of 250 feet and a reverse setback of 250 feet. In master planned communities and planned developments, the setbacks for an existing site would be as approved in their regulations. Other changes included (1) authorization via the GWDSP that allowed multiple wells per site (35.5.10.3), (2) a GWDSP would be required for new wells (35.5.10.4) with a presumptive size limit of 3 acres unless proved by the operator, (3) constructed site verified through an as -built GWDSP to ensure location of sites (35.5.10.4), (4) as -built GWDSP required a permit, (5) per Section 35.5.10.6 setback reductions would require waivers from 100% of protected uses, approval from the Zoning Board of Adjustment or administrate relief if the operator agreed to restrict existing drilling and production sites by not adding any additional new wells, and (6) definitions were added or modified to ensure clear consistent descriptions. Significant new notification provisions were added that included (1) new signage requirements to ensure sites were clearly marked for the benefit of the public, (2) city and property notices for various activities, and (3) property purchase notices in a site proximity. Redesigned sound mitigation procedures required professionals qualified in noise mitigation to submit a noise management plan. There were enhanced standards if setback distances were reduced. The production monitoring stipulated periodic evaluations to determine if onsite equipment was function as designed. Council Member Hawkins asked for an explanation of why the measurements were being taken from the edge of the well site rather than the well head. Groth stated taking measurements from the well head might result in changing distances as additional wells were drilled. Measuring from the boundary protected the movement of the wells and allowed for additional wells on the same location. By having a site setback all operations were covered in that location. Council Member Hawkins asked how that protected the adjacent property owner. Groth stated that it provided a clear delineation with a one -time measurement as opposed to multiple measurements. Council Member Roden stated that public comments had been made that this ordinance represented changes as a major retreat from the previous ordinance. As he saw it, this was not a City of Denton City Council Minutes August 4, 2015 Page 12 retreat but a better ordinance. Prior to this amendment, he questioned what the current setback for new wells was. Groth stated that 2013 ordinance had 1200 distance from the site for every well. Council Member Roden questioned what the minimum setback was in the 2013 ordinance. Groth stated that it was 500 feet. Council Member Roden questioned what the reverse setbacks were in the 2013 ordinance. Groth stated they were 250 feet but that there were problems with the application of that as there were many sites that predated the 2013 ordinance. This change would provide the same separations from existing sites and new sites to 250 feet. Council Member Roden stated that one item of discussion was trying to give first responders a 300 foot buffer. So while the setback was 250 feet he questioned how the effective setback of 300 feet was being achieved. Groth stated that it was the practice when responding to an emergency to set up a perimeter of 300 feet. The ordinance addressed their guidelines by a 300 foot build area. So within the property the rear setback could be used and within the gas well drilling production site, any internal setbacks would be used to meet a 300 feet separation for equipment that produced or stored flammable materials. Council Member Roden asked about the notification requirements in the 2013 ordinance. Groth stated that there was confusing language on how notices were sent. The proposed ordinance added clarifications for (1) signage at the location, (2) an application requirement that was not in the prior ordinance which provided an opportunity for the operator to notify surrounding properties regarding a site application, (3) newspaper notification, and (4) a sign posted at the location indicating an application had been filed. There was also clarification for actual activity on a site which allowed the operator to notify residents more frequently. Council Member Roden stated that not just property owners would be notified but also residents. Groth stated that the specific activity notification would go to the dwellings so renters would also be notified. Council Member Roden stated that the addition of a sound engineer was new. Groth stated yes that the sound engineer would identify for the operator and the City steps that the operator must take to ensure the ambient noise level was being followed. The noise management plan would address the levels and provide mitigation standards. Council Member Roden stated that production monitoring was also new. City of Denton City Council Minutes August 4, 2015 Page 13 Groth stated that an evaluation would be done of the equipment at each site to ensure it was operating within correct standards. Council Member Wazny stated that a notice with any type of production would go to the property so the renter would be notified. Regarding any type of waiver, it was the property owner who would have any type of authority for a waiver and not the renter. Council Member Hawkins asked about an access and transportation plan. Groth stated that this was already in the ordinance but it would now be used to identify that site access could not be taken from a neighborhood street. Council Member Briggs asked about waivers and notification. By moving into the well, it was an automatic waiver from the production site setback. Groth stated that waivers would be required from 100% of the protected uses. One of the ways to get that was to ask for a signed letter from each protected use owner. If the property owner developed up to the reverse setback, there would not be a need to go back for a signed waiver. Council Member Hawkins stated that if a house went to the gas well it would be a 250 foot setback. If another well was put on the site, the setback would be 250 feet. Groth stated that with an existing site, if an operator not in an industrial site requested a gas well development site plan, the distance would be 500 feet plan with opportunities to reduce that amount. The following Speaker Cards were submitted: Larry Beck, 915 E. Sherman, Denton, - no option noted on card Topher Jones, 419 Fulton, Denton — in opposition Ed Ireland, 777 Taylor, Fort Worth — in opposition Council Member Roden stated that an ordinance needed to be commercially reasonable. What might be commercially reasonable within one area of the City might not work as opposed to another portion of the city. Ireland stated that HB 40 did not specify between municipalities. It depended on how it was interpreted. Randy Sorrells, 2604 Roselawn, Denton — in opposition Bobby Jones, 1824 S. Bonnie Brae, Denton — in opposition Gilbert Horton, 1209 CR 1304, Bridgeport — in support Walt Lindrose, 825 Lynhurst, Denton — no option noted on card Chris Rosprim, 2113 Emerson, Denton — in support Branden Finley, 806 Denton Street, Denton — in opposition Elida Tamez, 1700 Willowwood, Denton — in opposition City of Denton City Council Minutes August 4, 2015 Page 14 Council Member Johnson stated that the last speaker and several others had brought up conflict of interest issues associated with him. City Attorney Burgess stated that the Legal Department had looked at length at the issue and had provided an opinion that there was no conflict of interest under the provisions of State law, the Charter and City ordinances. Council Member Hawkins stated that Council Member Johnson had high standards of character and was frustrated over those allegations. Jeff Hardgrave, 5420 LBJ Freeway, Dallas — in opposition to natural gas storage Council Member Roden questioned what portion of the ordinance would affect their operation. Hardgrave stated that the pad site was less than two acres and 1000 feet would put them in another neighborhood. Council Member Roden asked for an understanding for the Atmos site Groth stated that the ordinance would include those types of wells so if Atmos drilled a new well it would require a permit and the notification provisions. If there was no site plan, the new requirements would not apply and Atmos could continue operations as they currently were doing. Council Member Roden requested staff work with Atmos to understand the issues for them. Groth stated that Atmos could operate as is and the new provisions would only apply if something changed. There should be no conflict with current operations. Mayor Pro Tem Gregory stated that the moratorium expired in a couple of weeks and there was nothing posted to extend it which meant some action had to take place at this meeting. In the future, revisions might have to be done as situations arose. This would be on going work that would have to be done Carol Soph, 1620 Victoria, Denton — in opposition Ed Soph, 1620 Victoria, Denton — in opposition Jennifer Lane, 126 Willowwood, Denton — in support and in opposition Ron Seifert, 1400 Morin, Denton — in support Cindy Spoon, no address provided — no option noted on card Council Member Roden asked for comments from the Gas Well Administrator to allow for a variance in terms of conditions authorized to grant a variance. Groth stated that the ordinance allowed for an administrative variance to reduce a setback in the event the operator would be willing to restrict two or three sites which would be recorded. A waiver would reduce three sites to one site. Council Member Roden stated that the end result would be fewer new wells on multiple sites. He would like this use to be in industrial/commercial uses. City of Denton City Council Minutes August 4, 2015 Page 15 Council Member Wazny stated that an approved master planned community and a planned development would not have to conform to the new regulations. A new master planned community would have to conform to the new rules. Tara Linn Hunter, 918 Bell, Denton — in opposition Council Member Roden questioned if the notification process had variances for the renter of the property to waive certain rights on behalf of property owner. City Attorney Burgess stated that a concern was one of standing in terms of who would have standing to effect waivers on behalf of the property. They had determined that it would need to be the property owners as renters could not do it on behalf of the property owner. Mayor Pro Tem Gregory suggested that an amendment on notification timeline might be needed. If the notice was too far in advance people might ignore it or forget it. Jodi Ismert, 819 Anna, Denton — in opposition Morgan Larson, 2210 Westwood, Denton - in opposition Council Member Briggs asked for an explanation why a variance would go to the Zoning Board of Adjustment. City Attorney Burgess stated that the ordinance was unique as it was crafted as a zoning ordinance. As such, it put the variance process into the Zoning Board of Adjustment to follow State law which indicated that variances went to the Zoning Board of Adjustment and not to Council. Council Member Briggs questioned what types of pits were allowed. Groth stated that the requirement for pits were for fresh water pits and if they were not, they would not meet the requirements. Mayor Pro Tem Gregory questioned why the ordinance was in the zoning code. City Attorney Burgess stated that in early 2000 gas well drilling was approached with gas well plats which were required. The ordinance at that time was crafted to assist with problems with the plats. Kelli Barr, 1005 W. Hickory, Denton — in opposition Rosemary Candelino, 602 Woodland, Denton — in opposition Deborah Armintor, 2002 Mistywood Lane, Denton — in opposition Earl Bates, 5163 Shaw Lane, Denton — in opposition Comment cards were received from the following: Sandra Kelly, 2002 W Hickory, Denton — in opposition Michael Hennen, 724 Thomas, Denton — in opposition Lori Holtzclaw, 810 Denton Street, Denton — opposed Sue Smith, 1819 Crescent, Denton — no option noted on card City of Denton City Council Minutes August 4, 2015 Page 16 John Goodman, 424 Bernard, Denton — in opposition Todd Ellis, 3437 Crisoforo, Denton — in opposition Alison Trapp, 3437 Crisoforo, Denton — in opposition Rhonda Love, 1921 Hollyhill, Denton, - in opposition Adam Briggle, 1315 Dartmouth, Denton — in support Justin Lemons, 809 Emery, Denton — in opposition Dianna Robinson, 2508 Rockwood, Denton — in opposition Council Member Roden stated that the reverse setback issue was difficult as Denton could not regulate the industry as desired due to the State legislature. He had a question regarding whether the Fire Marshal was comfortable with the level as proposed. Robin Paulsgrove, Fire Chief, stated that the ordinance had an effective 300 feet that achieved their 300 foot minimum. Options to reach that depended on where that was measured from. It included putting combustibles further to the center of a pad or pushing a development structure back further onto a lot that would encroach on the zone. That would effectively achieve the 300 foot goal. City Attorney Burgess indicated that Council should act on the substitute cover ordinance and in addition, staff had prepared and cleaned up the sections in the underlying ordinance consistent with what they saw earlier. Look at this as a package and substitute it in the motion. Council Member Briggs motioned to postpone consideration of the ordinance until the Mayor was present as there was a need for the full Council to vote on the proposal. Motion died for lack of a second. Council Member Wazny stated that the moratorium expired in two weeks and something had to be on the books before midnight. Council Member Johnson stated that it was important to remember that Council checked personal opinions and goals at the door and made decisions based on all of the citizens of Denton. Council had to deal with the playing field that it had and think of everyone in the City and not just those at the meeting. Somewhere the idea of civil disagreement had been lost as the Council had been called many different names, etc. and felt that when those tactics were used, people didn't want to listen when discussion was done that way. Council Member Roden motioned to approve the ordinance as contained in the substitution packets and with the substituted cover ordinance. Council Member Johnson seconded the motion. Council Member Briggs motioned to amend the notification schedule from a minimum 20 days and 2 days to change to 30 to 10 days and could be done before the 30 days. Council Member Johnson seconded the motion. Council Member Hawkins asked for a clarification of the motion. Groth stated that the 30 day notification was for any stage at the site. If there was any type of maintenance activity, at least 10 days notification would have to be made. City of Denton City Council Minutes August 4, 2015 Page 17 Mayor Pro Tem Gregory stated that this would be notification to owners and renters. Groth stated that the change would involve notifying dwellings from 20 to 2 days up to 30 to 10 days. Council Member Hawkins asked if it applied to maintenance on a piece of equipment. Groth stated that there was a list of activities it would affect and maintenance would be one of them. Council Member Johnson thought the notice was for specific major activities and not for maintenance. Aaron Leal, Deputy City Attorney question if Council Member Briggs was referencing Section 35.22.7(c) subsections 1 and 2. Council Member Briggs indicated that was the proper section. Council Member Johnson withdrew his second. Council Member Roden suggested Council cite specific sections for amendments so there weren't any unintended consequences by changing the wrong section. Mayor Pro Tem Gregory stated that the motion was to amend section 35.22.7 paragraph c subsections 1 and 2. Council Member Briggs felt that homeowners needed more than 2 days' notice for fracking or refracking a well which was her intention with the amendment. Council Member Hawkins was worried about the maintenance portion of the section. Mayor Pro Tem Gregory stated that the reference was to the maintenance activities that involved removal of a well head at a drilling or production site. It was maintenance specific to the removal of a well head. Council Member Johnson stated that he withdrew his second as it was his understanding that the section dealt with any type of maintenance. If something was wrong, he did not want to have to wait for a ten day notice for the repair. He was concerned with unintended consequences. Council Member Wazny stated that she was worried about untended consequence of such an amendment. Many people had studied all aspects of the ordinance. Until there was time to study proposed amendments, she felt this was not the time to put in amendments. Council Member Roden stated that it would not be good to push the dates out too far. He seconded the motion. City Attorney Burgess stated that the industry had comments regarding the specific time frames and expressed concerns about the time frames. City of Denton City Council Minutes August 4, 2015 Page 18 Council Member Roden questioned if the dates provided would have to be precise and if the date were missed, the notices would have to be redone. City Attorney Burgess stated that missing the date would be an ordinance violation but wording could be crafted to be reasonable. Leal stated that the provisions were crafted that way so when an operator had to contract with a third party for services and a delay occurred, if the notices were pushed so far out, the notification process would have to start again which would delay the operator's ability to do what was needed. Mayor Pro Tem Gregory asked if the notice could indicate within a window of time the activities would take place and if not done within that window, then the notice would have to be redone. Council Member Roden stated that it hinged on what was said in the notification and whether a precise date had to be pinpointed or a window of time was unclear at this point. On roll call vote to change the notification, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Council Member Briggs motioned to add vapor recovery units as described in the Fort Worth ordinance. It was not in the current ordinance so there was no reference point. Council Member Hawkins asked for Legal advice on this proposed amendment. City Attorney Burgess stated that she did not know when Fort Worth added that provision and it might be pre -HB 40. It might have also pre -dated when the federal government added vapor recovery regulations to the law. Legal had serious concerns that was preempted per law. Motion died for lack of a second. Council Member Briggs motioned to amend all the reverse setbacks to 300 feet except for industrial as found in Section 35.5.10.2 (b)l.c. Council Member Roden stated that this topic was discussed at several meetings noting that much work was done to do that and get the Fire Marshal and Fire Chief to where they needed to be. Given that the Fire Chief had indicated at this meeting that he and his staff were comfortable with maintaining the 250 setback, he was also comfortable with it. Council Member Briggs felt that the extra footage was safer and was a good balance. Mayor Pro Tem Gregory stated that the Council's rules indicated that the chair was unable to make motions or second a motion. If he were not chair, he would have seconded the motion. City Attorney Burgess stated that staff had worked extensively with the Fire Department on these provisions. Section 35.5.10.2.f was added that would require meeting the 250 foot setback as measured in the section Council Member Briggs was referencing or the greater of a 300 foot City of Denton City Council Minutes August 4, 2015 Page 19 setback as specified from a measuring point as noted in Section f. The requirement of a 300 foot setback was overlaid on top of the 250 foot setback. Motion died for lack of a second. Council Member Hawkins motioned, Council Member Briggs seconded to suspend the Council's Rules of Procedure to allow the Mayor Pro Tem to motion or second a motion. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Council Member Briggs motioned to increase the permit fee from $1700 to $3250 as in the 2009 Decatur ordinance. City Attorney Burgess stated that fees were not in consideration at this meeting as they were not included in the ordinance and could not be considered at this meeting. The fees needed to be consistent with the work performed and would be considered in a separate fee ordinance. Motion died for lack of a second. Council Member Briggs motioned to amend the ordinance to require electric motors instead of diesel. Council Member Roden that the ordinance was being written in context of HB 40 which states what city can and can't regulate. He questioned if this proposed amendment would fall under the regulation of surface activity which a city could regulate. City Attorney Burgess stated that the idea of electric motors had been heard for many months. It was looked at by the Planning and Zoning Commission as well as staff performing extensive research to look at the kind of capacity that was available to run generators. The Planning and Zoning Commission made a determination to not carry the issue forward and did not recommend it to Council. The electric motors created a different kind of noise which may or may not solve the issue. She felt the City was entitled to regulate noise issues. The ordinance was crafted to a set of standards that would allow the industry to meet the standards how so ever it could be done. Mayor Pro Tem Gregory asked if the amendment proposed by Council Member Briggs was intended to mitigate noise or emissions. Council Member Briggs replied both. Mayor Pro Tem Gregory felt that the City could regulate it in terms of noise nuisance but not sure if it could be done in terms of emissions. Motion died for lack of second. Council voted on the motion to approve the ordinance as contained in the substitution packets and with the substituted cover as well as the amendment in regards to notification. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", City of Denton City Council Minutes August 4, 2015 Page 20 Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ", Council Member Briggs "nay ". Motion carried with a 5 -1 vote. Council Member Briggs left the meeting. 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 Roden requested an update on a previous request for a work session on noise in the Downtown area. Council Member Roden stated that National Night Out was the first Tuesday in October and asked the Agenda Committee to consider changing the Council meeting date or have a short meeting so that Council Members could attend neighborhood events. 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 11:00 p.m. DALTON GREGORY MAYOR PRO TEM CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES August 6, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Thursday, August 6, 2015 at 8:30 a.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Mayor Watts, Council Member Hawkins, and Council Member Wazny. ABSENT: Council Member Briggs, and Mayor Pro Tern Gregory. Work Session Reports A. ID 15 -635 Receive a report; hold a discussion, and give staff direction regarding the FY 2015 -16 City Manager's Proposed Budget, Capital Improvement Program, and Five -Year Financial Forecast. City Manager Campbell felt that the budget was the most important and critical decision that the Council did throughout the year. The budget set the stage on how the City was going to provide services to citizens. Council Member Briggs arrived at the meeting. City Manager Campbell continued that the proposed budget was a baseline and he expected that there would be changes before it was adopted in September. Pages of particular interest was Page 3 which outlined the mission, values and goals for the City plus the Strategic Plan which was the foundation of the budget. Chuck Springer, Director of Finance, stated that the budget was built on the Strategic Plan and listed the five key focus areas. Also included were key action steps for the Strategic Plan. Budget priorities were presented along with assumptions for the General Fund. The proposed tax rate, effective tax rate, rollback rate and certified taxable value were reviewed. Also reviewed were the appraised values for the past five years. Growth in the Street Improvement Fund was seen since 2011. The sales tax collection was higher than last year and was estimated to be over the estimate. Compensation and benefits for Civil Service and all other employees were presented. He noted that the health insurance funding had a 6% increase in City contributions for this year and future fiscal years. Health plan changes included increased office visit and prescription drug copayments, elimination of most out -of- network benefits, office visit savings with Tier 1 physicians and a 5% increase for the Gold plan and no increase of the Silver plan as employees on the Silver Plan had lower health insurance costs. General fund revenue, expenditures by category, and expenditures by function were presented. The Vacancy Management/Salary Savings had budgeted savings in 2015 -16 at $1.03 million. Savings were from normal turnover and management control over filling of vacant positions. This added additional flexibility to deal with any revenue shortfalls. Recommended General Fund Supplemental Packages were reviewed. Those included (1) four additional positions in Building Inspections, (2) Quakertown House Relocation which would be HOT funded, (3) Open Records Request software, (4) Summer Youth Program for 15 students, (5) DISD Mentoring Program, (6) Right -of -Way maintenance, (7) Economic Development City of Denton City Council Minutes August 6, 2015 Page 2 Administrative Support, (8) a licensed Trade Technician for Facilities Management, (9) a City Wide Space Study, (10) funding for the Kiwanis Fireworks, (11) revenue fund Vehicle replacements, (12) a new medic unit at Station 7, (12) Fire Inspector Specialists, (13) a Compensation Consultant for Human Resources, (14) Learning Management software for Human Resources, (15) tuition reimbursement, (16) Incode parking for TxDOT interface, (17) water park program expansion, (18) Natatorium program expansion, (19) Parks Maintenance unfunded O &M, (21) website redesign, (22) Clarion contract for special projects, (23) Planning Technicians, (24) Patrol Supervisor - Sergeant, (25) Civilian Records Clerk, (26) Bike & Pedestrian Education and safety, and (27) pedestrian connectivity which was bond funded. Council comments regarding the Kiwanis fireworks were that in future years look at funding it out of HOT funds instead of the General Fund. Supplemental packages funded in the current fiscal year were reviewed along with Internal Service Funds Supplemental Packages for 2015 -16. Remaining funds supplemental packages were also presented and included the recreation fund and street improvement fund. Options for Council priority funding - Option A was to use the funds for recurring expenditures such as street maintenance or other recurring supplemental packages. Option B was to use the funds for one -time expenditures in 2015 -16. This would eliminate the need for 2016 -17 M &O one - cent tax rate increase. Option C was to use the funds to lower the tax rate from the proposed rate. Council could choose a combination of the options. Details on each of the options were reviewed along with tax rate projections for Options A -C. The TIRZ base value and estimated revenue for the Downtown TIRZ and Westpark TIRZ were reviewed. The Water Utility Fund noted a challenge for this fund was a continued decline in average water sales per capita. The focus was on infrastructure replacement and needed expansion of system and utility relocations for State highway projects plus continued costs for zebra mussels. A proposed average rate increase of 5% was recommended with some variation by customer class. Four new FTEs were recommended with 3 at part -time and one -full time. The focus for the Wastewater Utility Fund was on infrastructure in terms of replacement, expansion and sanitary sewer overflow program plus meeting other regulatory requirements. An average rate increase of 2% was proposed, 2.5 new FTEs and a change in commercial consumption rate calculation from 90% to 95 %. Solid Waste and Recycling fund major projects were presented. Proposed rate increases were noted along with the request for 4.5 new FTEs. The Electric Utility Fund would center on TMPA debt payments, replacement of aging infrastructure, and construction of transmission system with increased revenue to DME. A base rate increase of 4.5% which was offset by reduction in the ECA rate with an average residential customer increase of .4 %. Fourteen new FTEs were requested with 6.0 for capital program, 5.0 for energy management and 3 for operations. The monthly rate impact for the average residential customer was reviewed. The 2015 -16 Capital Program was presented which included new funding and the General Government proposed debt. Added positions by funds were reviewed and included about 55 new employees. City of Denton City Council Minutes August 6, 2015 Page 3 Next steps were to vote on the proposed tax rate for required notices on August 11', hold public hearings on August 18' and September 1st, hold budget discussions at all upcoming work sessions through September 151h and adoption of the budget on September 151H Council Member Wazny stated that Utilities had their own budget and questioned the large supplemental request and how it fit into the big budget versus the utility budget. Melissa Kraft, Director of Technology Services, stated that the funds were for server equipment and continued expansion of storage capacities for their needs. This related to the energy management portion of the utility. Council Member Hawkins asked for more explanation on the vacancy management and how it teamed with the new FTE positions. Springer stated that during the economic downturn a process was setup on how vacant positions were filled. There would always be vacancies but this process allowed for an approval process before filling a position. If the sales tax did not meet the forecast a freeze could be put on certain types of positions for a longer period of time. Bryan Langley, Assistant City Manager, stated that it represented normal attrition in the budget. If there was a budget shortfall the money in the vacancy fund could be used instead of eliminating positions. Council Member Roden asked about sidewalk improvements and the state of sidewalk funding. Keith Gabbard, Street and Drainage Superintendent, presented information on maintenance and reconstruction for sidewalks. Council Member Roden asked about new sidewalks in the out years. Gabbard stated that there was no funding other than CIP funding. Council Member Roden asked if the OCI study included sidewalks. Gabbard stated that they had just received information from the consultant and were looking over that information. Council Member Roden stated that he would continue to encourage more funding for sidewalks He felt that as staff looked at a new website, continue to look at the pieces such as a 311 system for a larger comprehensive view and to be as fiscal as possible. Alison Ream, Administrative Services Manager, stated that the redesign would include a low level CRM. The Council Committee on Citizen Engagement was looking at more robust customer relations management system which would automate some requests instead of having to go through staff. Council Member Roden asked about the 311 program for $100,000 listed in the council priorities and what that would provide. City of Denton City Council Minutes August 6, 2015 Page 4 Langley stated that amount was a placeholder for the line item. The program would probably start with some functionality with the website and grow as it moved forward. Council Member Johnson asked if wellness benefits had been explored along with health benefits. Springer stated that there was a system in place for a point system for a reduction in employee costs. Council Member Johnson suggested looking at a refund if an employee did not use as much benefits which might motivate employees to be fitter. His second point dealt with building and fire inspections. He was not sure there were enough funds for the process from the permit to getting the business open. He suggested thinking about a distribution of funds over departments but as it related to anything having to be built, put more emphasis on that. Mayor Watts stated that he had concerns on how the current Planning software was being utilized and whether it was as efficient as it needed to be. He wanted to make sure that whatever need to be done so that the deficiencies were correctly noted. Aimee Bissett, Director of Developmental Services, stated that additional dollars for the planning budget was not comprehensive for all of the needs in the department. They had also performed an in -depth technology analysis including Projectdox and would be adding some customer functionality tools to provide better service to citizens. They were also working with the website in order to help citizens find information they may need related to the Planning Department. Council Member Johnson stated that he was referring to milestones a developer had to pass for the building of a home and suggested including something to measure themselves against in terms of what the customers were indicating. Bissett stated that staff had done some of that already in this process. Mayor Watts suggested looking at funding requirements if the amount of turnaround time could be shortened. Bissett stated the team approach would help with shorter projects to get the turnaround time faster and a dedicated team for larger projects that might take the full amount of time for review. Council Member Roden stated that he would like some basic reporting on the neighborhood fund in terms of what was being spent and what the City was getting from that. Bissett stated that there was a long range plan to make a new division and they were now looking at a way to staff that division. Mayor Watts stated that he had a sense of disconnect of why the budget was forecasted at 5% and the budget came in at 4% and if over, what to do with the overage. He would like to see some type of tax rate decrease which he wanted last year but it didn't happen. He felt it was feasible and would send a good message. There never was enough money need to do all of the things they wanted to do. City of Denton City Council Minutes August 6, 2015 Page 5 Mayor Watts stated that a recommendation from the Homelessness Task Force was to fund a Homelessness Coordinator to help with all of the nonprofits. It might not be a city position but the City could provide funding for the position. In terms of the economic development fund, there currently was no funding for that. He suggested using that money for a city -wide economic development fund to open it up to other areas of the city and in the future determine what economic development incentives would be expiring and take a portion of that to put in the fund. Mayor Watts asked if the health insurance fund had been benchmarked between self - insurance as opposed to fully insured. Scott Payne, Risk Manager, stated that it was not done every year but it has shown a savings due to being self - insured. One reason was that there wasn't the overhead for management of the claims when self - insured. Mayor Watts questioned the parks supplemental request for on -going costs in terms of what they represented. Emerson Vorel, Superintendent of Parks, stated that the costs were mostly related to Hickory Street in terms of water, chemicals, etc. It also included personnel and electricity and related to city owned properties that had to be maintained. A number of properties were included and the position would have responsibilities all over town. Council Member Johnson suggested an analysis of outsourcing the position as opposed to an in- house position. Council Member Hawkins commented on the supplemental request for microseal in terms of the on -going costs as a temporary fix to the streets. Gabbard stated that the microseal was a preventative which extended the life of the street. Currently they were spending $400,000 a year for the sealing. Council Member Briggs left the meeting. Mayor Watts asked for a clarification on how the maintenance would be handled for the asphalt recycler. Springer stated that it would be in the Street Maintenance fund and would be from that department. Mayor Watts asked about the FTEs for the street maintenance crew. Gabbard stated that this new crew would supplement the current program to dedicate time and resources to those activities. Mayor Watts asked for a benchmark on what the crew will be able to do. He asked about the funding for the South x Southwest trade show. City of Denton City Council Minutes August 6, 2015 Page 6 Bissett stated that last year it was funded with existing marketing funds for CoDenton program as there were tech programs at that marketing. The CVB asked for funds again but she did not have any available in her budget. Council Member Johnson stated that UNT had offered to contribute $20,000 but felt that was a match. Bissett stated that she knew that CVB and UNT contributed funds but would research the matching contribution. Council Member Johnson suggested revisiting that if there were matching funds. Council Member Roden agreed with the program and felt it was beneficial for small businesses. Council Member Wazny agreed as it was a national/international magnet event that would showcase Denton. Mayor Watts suggested moving forward to see if there were any HOT funds could be used for the expense. Council Member Roden stated that in terms of the fiber question, he was concerned there might not be funding needed. He suggested having it as part of the budget cycle. Kraft stated that staff had met with various providers who were asking how many businesses would be interested in the fiber. Council Member Roden requested an update on the Community Market in terms of locations and what the Market was looking for. Mark Nelson, Director of Transportation, presented a recap of the history of their request. The Community Market had taken an additional look at the site on Exposition and were requesting infrastructure such as water, electricity, and green space for the site. They now saw that site as an opportunity but would need infrastructure needs such as taking out the old asphalt for green space, electricity, lights, shade structures, and restroom facilities. Cost estimates had been provided and staff had asked the Market about priorities. Council Member Roden felt it was a catalyst site for the economy in the area. He would like to look at more details on that location. Council Member Johnson suggested determining what the return on investment would be but he did not want to get into competition with local businesses in terms of sales tax. Council Member Wazny asked about the breakout for the amounts listed for the bus shelters. Nelson stated that the Transit Authority provided the capital for the shelters /benches. Staff looked at some of the permitting /inspection processes and infrastructure. City of Denton City Council Minutes August 6, 2015 Page 7 Council Member Roden suggested looking into what amenities were needed just to get a bench. He wondered if they not overthinking this and suggested looking at the policy. Nelson stated that because the benches would be on the DCTA bus system, they were required to meet ADA requirements. If they added the amenity, they had to make it to ADA standards. Council Member Roden questioned if it would be different if DCTA was not initiating the project. Nelson stated that he would look into it but it was his understanding that it would not make a difference. Council Member Hawkins stated that he understood the rules but something needed to be figured out to get this done. Council Member Johnson stated that they had talked about reasons why this could not be done. This was not complicated. He suggested indicating that the City would like to put up 10 benches by end of a determined month and just go do it. Go to TxDOT and just do it. DCTA could pay for them. Mayor Watts requested a presentation by DCTA on this particular topic in Work Session and to see about forming a joint goal. Council Member Johnson felt that dumpsters on the sidewalks were in the same category —just do it. He questioned where in the budget this was being tackled. Vance Kemler, Solid Waste General Manager, stated that two projects were under way. One was dumpsters on sidewalks and working with property owners who would not voluntarily move them. In the next 2 months they would be moved. That would take care of about 27 of them. The second project was the dumpsters in public rights -of -way. Staff was coming back with options on how to address moving those with funding in the operating budget. Council Member Johnson stated that if the projects were not funded for this year, he wanted to make sure it was funded next year. Jon Fortune, Assistant City Manager, stated that an Informal Staff Report on the projects went out several weeks ago. He indicated that Kemler and staff already had half of the dumpsters off the sidewalks. Staff had exhausted all volunteer tools and was preparing a report with recommendations for non - voluntary options. The second issue involved a comprehensive analysis on downtown issues such as bags, carts, etc. and moving forward with satellite locations. Council Member Hawkins asked for a possible tax decrease discussion that would include prolonging a tax increase as long as possible. Council Member Roden noted that there was a line item for a homeless prevention program. Council Member Johnson stated that in terms of a tax decrease, it was easy to spend everything made unless there was a plan. A 3% increase was more than half the total budget increase and questioned if 4% was the correct number moving forward. City of Denton City Council Minutes August 6, 2015 Page 8 Following the completion of the Work Session, the City Council convened in a Closed Meeting at 1:24 p.m. to consider the specific item listed below under the Closed Meeting section of this agenda. Closed Meeting: A. ID 15 -619 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. Council Member Briggs returned to the meeting during the Closed Meeting. Council returned to the Open Session at 2:00 p.m. to consider the following: 2. 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 requested a Work Session on prioritizing street reconstruction projects. Council Member Johnson requested a Work Session regarding downtown development in the flood plain. Council Member Wazny requested a press release regarding the upcoming public hearing on the budget. With no further business, the meeting was adjourned at 2:08 p.m. City of Denton City Council Minutes August 6, 2015 Page 9 CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES August 11, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, August 11, 2015 at 3:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Mayor Watts, Council Member Hawkins, Council Member Briggs, and Council Member Wazny. ABSENT: Mayor Pro Tern Gregory. Work Session Reports A. ID 15 -669 Receive a report, hold a discussion, and provide direction regarding current City of Denton facilities and how to proceed with planning for future needs. Bryan Langley, Assistant City Manager, stated that the objective of the presentation was to provide an overview of key city facilities, describe key issues at each location and provide a recommendation on how to proceed with future facility needs. Regardless of direction, costs would be incurred to renovate, lease, and /or acquire additional space to meet future facility needs. The presentation overview would describe cost and footprint requirements of recent city Hall/Administration facilities constructed around the state; review current issues with City facilities, describe facility vision and provide overview of key design and construction elements, discuss financial capacity and options, and provide recommendation on how to proceed and seek direction from Council. Construction details from other cities such as Sugar Land, Grapevine, Lewisville, Grand Prairie Public Safety Building, Frisco, Southlake, and Denton County Administration Building were reviewed. Council Member Wazny stated that she did not see a cost per employee for the cost per building presented. Langley stated that the cities probably also had other buildings for city employees. Current Issues with City Hall Facilities City Hall - challenges included (1) main location for public meetings which often had inadequate space for many meetings; (2) space limitations for other employees, (3) parking limitations, (4) flood plain restrictions, (5) ADA compliant but not ADA friendly, and (6) a high cost to operate and renovate due to architectural integrity concerns. City Hall West - challenges included (1) not designed for current operations and does not properly align work spaces to enhance productivity; (2) space limitations, (3) customer service impaired due to layout of building /absence of other key departments; (4) heating /cooling difficulties due to split level, (5) parking limitations, (6) ADA compliant but not ADA friendly, and (7) a high cost to operate and renovate due to architectural integrity concerns. The building was also designated as a historic building. Council Member Wazny asked if there was ever thought given about adding a second floor to the current city hall. City of Denton City Council Minutes August 11, 2015 Page 2 Langley stated that it would not add a high amount of space plus there would still be parking issues. City Hall East - challenges included (1) separated key functions from other city departments and impaired customer service, (2) parking limitations, (3) Railroad and Exposition parking lots needed substantial redesign and reconstruction, (4) meaningful expansion possible for PD and Courts, but limited for other operations, and (5) ADA complaint but not ADA friendly. Service Center - challenges included (1) separated key functions from other city departments and impaired customer service, (2) poor accessibility for the public and parking limitations, (3) space limitations, (4) expansion of location did not seem compatible with surrounding neighborhood, and (5) Purchasing function was separated from other administrative functions. Current Issues Summary - City hall facilities were aging structures, customer service for citizens was impaired by the lack of one key facility, limited /inefficient office space, and a decentralized service model. Demands for public meeting space was strained in numerous facilities, parking at all facilities was limited and the current facilities did not have adequate room to expand as the City grew. Staff was recommending addressing the planning issues holistically rather than focusing just on a particular structure such as City Hall West. Mayor Watts stated that nothing was addressed with the Civic Center. Langley stated that this study was primarily looking at the office /service related facility vision and key design/construction elements. The staff proposal was to build a new city hall facility to (1) enhance customer service, (2) serve as a catalyst for more pedestrian oriented, high quality and professional employment focused in the downtown area, (3) develop additional parking options for the downtown area, (4) connect existing city of Denton campus facilities to the rest of the downtown, (5) improve the entryway into Quakertown, (6) purchase and demolish the county building adjacent to the current City Hall and (7) ; create an outdoor public gathering /performance area. A preliminary vision of department/meeting rooms that would be housed in a new city hall was reviewed. Roughly 125- 150,000 square feet would be needed for the departments. Key design and constructions elements were presented which included cost, land acquisition, predesign work and design fees. Council Member Roden questioned what would be done with the facilities where employees were being relocated from. Langley stated that City Hall West could be repurposed. City Hall East could maintain some departments and allow for expansions such as a Justice Center. Council Member Wazny stated that the conversation trigger for this issue stemmed from the meeting at City Hall West with the Planning Department. She felt that meeting demonstrated that Planning needed help right now. The question was how to pay for any type of options. Langley stated that the City did not have the capacity to issue additional debt to build a new city hall facility. However, additional bonds could be sold with a tax rate increase. The city could also delay the sale of the 2012 and 2014 bond programs in order to provide additional capacity. Other City of Denton City Council Minutes August 11, 2015 Page 3 options to consider were to (1) utilize the Downtown TIRZ for some or all of the costs, (2) sell, repurpose or lease existing buildings to help offset construction costs; (3) consider the use of HOT funds for an entertainment/performance complex; (4) use park land dedication trust funds to improve Quakertown Park entrance near the current City Hall, or (5) explore regional transportation resources to improve McKinney Street. Short Term Recommendations included (1) leasing a location to house Planning over the next few years with a 5 -10 year lease contemplated, (2) re- purposing City Hall West and Old Central Fire Station facilities, (3) pursue the purchase of the Denton County building adjacent to the current City Hall. Long Term Recommendations were to develop a plan for a city hall project to be funded in the next bond program and complete a city hall facility needs assessment. Council Member Wazny suggested leasing City Hall West instead of selling it with some control on what improvements could be made to the building. Council Member Johnson stated that deed restrictions could be placed on the property which would help with maintaining the appearance of the building. Leasing would not be functional and the City didn't have to continue to own the building in order to maintain the look and feel of the building. Mayor Watts stated that the primary reasons for the long term goal was to bring together departments. He would have to be convinced to spend money for a lease. It seemed like an all or nothing approach. Council Member Roden stated that there were so many contingencies and certain pieces that were crucial to decide a direction before proceeding. He would not be opposed to divesting of some of the buildings. If the City was willing to sell some the buildings it would open a lot of other options. Council Member Johnson stated that in terms of a short term goal, it was important to remember how the people in City Hall West function or don't function. There was a need to address customer service and efficiency with a potential move. Another question to consider was what would be the down side if any of the buildings were sold. He felt that moving employees out of a city facility and continuing to own it was not viable. Council Member Wazny felt that it would be a mistake to break up the Planning Department. Move everyone from City Hall West to a new location and not leave some departments behind. She suggested looking at an asset list from the financial end and what kind of deed restrictions could be put on the buildings. Her issue right now was what to do to help Planning and give them the space they deserved. Council Member Briggs felt that keeping City Hall West would be a good option. She questioned if the City had been approached by a developer who wanted to buy both of the buildings. Aimee Bissett, Director of Development Services, stated that there was interest in both facilities but a discussion would be better in Closed Meeting on those details. City of Denton City Council Minutes August 11, 2015 Page 4 Council Member Hawkins was worried that Council might be sending a mixed signal to Planning. He wanted to make sure they were consistent with the vision to Denton. He questioned what would be involved in a space study. Council Member Johnson felt that a plan was needed of what to do with the building and whether the City was willing to fund it or let someone take care of it. The building could be sold with provisions to respect the history of the building. Council Member Wazny stated that the budget was not concrete and a decision could be made to find money to pay for the provisions. If a lease made sense at this time, Council needed to find the funding for it. Mayor Watts wanted to make sure everyone had enough information for a long term plan and to fully understand the rational and fiscal implication for a long term plan. Council Member Roden felt that this should be part of the comprehensive goal and was in favor of continuing to look at the subject. However, he felt the immediate needs were out of context. Langley stated that just moving the Planning Department did not solve all of the short issues. Council discussed the proposal for a comprehensive space study in terms of performing the study in- house, whether there were in -house employees with the expertise to perform the study, the cost of the study and what that cost would cover, taking in -house personnel from their normal duties to perform the study, and when the use of a consultant saved money in the long run to get the best objective. Mayor Watts suggested looking at branding and efficiency as efficiency could be in conjunction with financial impact. Council Member Johnson suggested including operational expenses such as maintenance and utility expenses. Think what would be beneficial for usable square feet per employee. Council convened in Closed Session to discuss the items listed below. Closed Meeting: A. ID 15 -651 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 City Council Minutes August 11, 2015 Page 5 B. ID 15 -740 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, exchange, lease or value of real property located generally in the 200 block of W. Mulberry and 200 block of N. Elm in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter 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. Following the completion of the Closed Meeting, the Council returned to Open Meeting and continued with the Work Session items. B. ID 15 -641 Receive a report, hold a discussion, and give staff direction regarding the 2015- 16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. Chuck Springer, Director of Finance, stated that he had no formal presentation but would facilitate discussion if needed from the Council's prior presentation. Questions from the August 6th meeting would be presented at the August 18th meeting. Council Member Roden stated that at the end of the first Work Session item, Council had indicated that they would be discussing budget implications in the Closed Meeting and could provide direction to staff in the Open Meeting. He felt that the Council would like to direct staff to look into possible leasing options to take care of the staff at City Hall West and to come back to Council with possible contractual options. The Council agreed with that direction. Council Member Roden questioned if a discussion regarding the Chamber contract would be timed to go along with the budget. City Manager Campbell stated that the Chamber contract was renewed on an annual basis but Council could have a discussion between now and when the budget was adopted. Aimee Bissett, Director of Development Services, stated that the Economic Development Partnership Board would be considering renewal of contract and forwarding a recommendation to Council in the near future. A Work Session item could be added to an agenda during the budget discussions for consideration. Council could proceed with the contract renewal and come back with further discussions. Council agreed with proceeding with that procedure. City of Denton City Council Minutes August 11, 2015 Page 6 Council Member Hawkins asked about the difference between the current budget and the amount of growth and how that money would be spent. Springer stated that the proposed tax rate included those revenues as non - departmental with three options on how to spend the additional funds. Council would need to determine what to do with that revenue. Council Member Wazny questioned the proposed 3% staff increase and suggested a 1.5% increase versus the 3% increase. Provide for a merit pay increase up to 3 %. Springer stated that compensation was not an across the board increase. It was merit based for non -civil service which it had been for the past 3 years. The Police and Fire Department were under meet and confer agreements. Council Member Wazny requested to see the difference between 1.5 and 3% in raw numbers. Council Member Briggs asked about the resolution on the tax rate and whether that was the tax rate increase that the public voted on. Springer stated that the proposed increase was related to debt service that the public voted on for the first issuance of the bond election. It estimated about a 1.5 cent increase for the 6 year program which was less than estimated for the bond program. Council Member Roden asked if there was anything in the budget relative to assist with additional parking options in the budget. He stated that Council had a discussion on a pedestrian crossing on McKinney to connect the two large parking spaces. He questioned if there was any movement on that and any funding for that. Mark Nelson, Director of Transportation stated that staff had discussions with Engineering and had a preliminary design for a midblock crossing. However, it was not at a point to bring back for a final permitting process. Council Member Roden asked what was holding up the project. Nelson stated that Engineering was still looking at finalizing it to bring to the Mobility Committee or for an Informal Staff Report for Council. Council Member Roden stated that there was nothing in budget at this time for the crossing. Nelson replied correct. Council Member Roden asked for an estimate to help with a budget discussion. Council Member Johnson stated that a simple short term solution was that on either side of the street light up the street at night and paint a crosswalk. Rather than finding long term solution at this time do a short term solution to open up the parking lots. City of Denton City Council Minutes August 11, 2015 Page 7 Nelson stated that a concern with a crosswalk was getting a safe harbor in the middle of the street due to the volume of traffic in both directions. Council Member Roden asked for a report on spots for bike racks and what would be the funding for the next fiscal year. Mayor Watts asked for a report on the 3% merit in terms of what was budgeted the last 2 preceding years and what was allocated. Also look into the reviews not done and how to determine the amount due to reviews not being completed. Mayor Watts indicated that the Animal Adoption Center had new positions filled with mid- budget allocations. He questioned where in the budget those positions would be moving forward and how they would be allocated. Springer stated that those funds were built into those budgets and would be on going for the next year budget. Mayor Watts asked for a copy of the slides showing the summary of the three options sent to Council and a slide for one -time expenses and a summary of the fund balance for the past 5 years and what it was now. He also asked for a report on any economic development 380 agreements in the Economic Development budget and whether there was a way to have these as a line item or a different category for those agreements. Council Member Briggs stated that staff had prepared an Informal Staff Report on damage to Quakertown Park and questioned if that amount was included in the budget to fund those repairs. John Cabrales, Assistant City Manager, stated that the cost was being absorbed by the Parks Department in this year's budget. 1. ITEMS FOR INDIVIDUAL CONSIDERATION Resolution No. R2015 -019 A. ID 15 -663 Consider approval of a resolution of the City Council of the City of Denton, Texas placing a proposal on the September 15, 2015, City Council public meeting agenda to adopt a 2015 Tax Rate that will exceed the lower of the rollback rate or the effective tax rate; calling two public hearings on a tax increase to be held on August 18, 2015, and September 1, 2015 and calling a budget public hearing on the Fiscal Year 2015 -2016 Annual Program of Services of the City of Denton to be held on September 1, 2015; requiring publication of notices of the public hearings in accordance with the law; requiring the posting of the notices of the public hearings on the City's Internet website; requiring the posting of the notices on the City's public access channel; and providing an effective date. Chuck Springer, Director of Finance, stated that State law required two public hearings on the tax rate if it exceeded the lower of the rollback or effective rate. This resolution also called a public hearing on the budget which was also required by State law and City Charter. City of Denton City Council Minutes August 11, 2015 Page 8 Council Member Hawkins motioned, Council Member Roden seconded to approve the resolution. On roll call vote, Council Member Briggs "aye ", Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -237 B. ID 15 -688 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with Denton County, Texas under Section 791.001 of the State of Texas Government Code, to authorize Denton County to install the "Downtown Square Camera System" onto Denton Municipal Electric light poles located near the Denton County Courthouse; authorizing the expenditure of funds therefor; and declaring an effective date (File 5905). Melissa Kraft, Director of Technology Services, stated that four cameras would be installed at each corner where there was Wi -Fi access. Information from the cameras would be sent to the City's 911 dispatch center and to the Denton County Sheriff's office. Council Member Roden asked about the budget implications. Kraft stated that Denton County was providing the cameras while the City would be providing the electrical and network connectivity. There would be no additional cost for the City. Council Member Roden questioned the purpose of the cameras. Kraft said they would be beneficial for general traffic and general safety. The cameras could be rotated every so often for different views. Council Member Briggs questioned why they needed to be on the Square and felt it might be an invasion of people's privacy. Kraft stated that the cameras could be faced towards the buildings to help deter vandalism or outward for larger crowds in the area. Lee Howell, Police Chief, stated that the cameras would be beneficial for a number of reasons. One reason was that they had the potential for solving or preventing crime. They were not for the general monitoring of the public and could be used for playback for a crime in the area. Council Member Johnson felt that the property owners in the downtown area had a huge problem with vandalism which these cameras might help act as a deterrent. Council Member Briggs felt that she did not want the first impression for visitors in the area that there was crime in the area of the Square. Mayor Watts stated that he did not have an issue with the cameras as long as they provided usable information. He wanted to make sure there was adequate lighting to see what the cameras were looking at. City of Denton City Council Minutes August 11, 2015 Page 9 Council Member Roden motioned, Council Member Wazny seconded to adopt the ordinance. On roll call vote, Council Member Briggs "nay ", Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", and Council Member Wazny "aye ". Motion carried with a 5 -1 vote. 2. 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 Wazny requested revisiting the impact fee map zones, the City's ability to increase or decrease impact fees to encourage or discourage development in certain areas and whether that was legal. Council Member Wazny requested revisiting a citizen's ability to speak at work sessions. Council Member Briggs requested looking in the truancy issue as to whether it was a civil or criminal offence. Council Member Johnson requested a discussion on street impact fees and priorities on street replacements. Council Member Johnson requested a policy discussion on damage to parks due to rentals for an event. With no further business, the meeting was adjourned at 7:00 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS City of Denton City Council Minutes August 11, 2015 Page 10 JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES August 18, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, August 18, 2015 at 1:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Mayor Watts, Council Member Briggs, Mayor Pro Tern Gregory, and Council Member Wazny. ABSENT: Council Member Hawkins. 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 August 18, 2015. City Manager Campbell stated that staff was asking to remove Items I, J and R from the agenda and not consider them. Item S had been would be considered as an Individual Item for Consideration. Council Member Wazny suggested not considering Consent Agenda Item S at this meeting and have a presentation at a later date. City Manager Campbell stated that staff could get consensus from Council in Closed Session. Council Member Johnson stated that Consent Agenda Items C, D and E related to the tree mitigation fund and that at one point there was a detail on the percentages of total funds spend on each category of trees, education, etc. Haywood Morgan, Urban Forrester, stated that those were part of the criteria for using the funds and were still in effect. City Manager Campbell commented on the new rules of procedure for citizen engagement. He reviewed the new speaker comment cards and noted that the comment cards did not have an option for written comments which would not be read into the records. Mayor Pro Tern Gregory suggested adding wording for the section on the agenda dealing with additional citizen reports indicating that there would be no pre- registration for this section and would be limited to four speakers. City Manager Campbell stated that the wording would be modified and that the intent was that those speakers would not be speaking on other agenda items. Council Member Johnson suggested making it clear that the additional speaker reports were for items not listed on the agenda. Mayor Watts stated that a process that had been in the rules for a while but not enforced was that the blue cards needed to be in before consideration of an item other than a public hearing. City of Denton City Council Minutes August 18, 2015 Page 2 City Manager Campbell stated that the public hearings procedure was changed so that the Mayor would open the public hearing before staff presentation, then the applicant would speak and then comments from citizens, followed by Council questions and discussion. 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. Aimee Bissett, Director of Development Services, stated that this incentive was for Victor Equipment. Chapter 380 of the Local Government Code allowed incentive agreements for economic development. She reviewed the statistics of Victor and indicated that the development would become the headquarters of the company and create 100 new jobs. The current facility and the expansion project were reviewed. The Economic Development Partnership Board was proposing a 65% property tax rebate for 7 years which was about $70,000 annually. Mayor Watts asked about the 100 new j obs. The information presented stated that there were also 100 jobs relocating to Denton and questioned the distinction between the two. Bissett stated that the incentive applied to the combined 200 jobs. She noted that the benefits to the City included adding high skilled, high paying jobs, and involvement in the community, 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. Aimee Bissett, Director of Development Services, presented information on staffing in the Planning Department with a total of 12 FTEs requested for 3 departments across 5 divisions. Mayor Pro Tem Gregory questioned when an analysis of fees in line with revenue was done. Bissett stated it was done last year with the collection of the number of inspections remaining the same. The intent was to get to a place where the inspectors were doing below 15 inspections per day. Mayor Watts questioned if the planning software was underutilized and that it might not be what was needed. He did not want to just put in people to fill in insufficiencies for the software. He had questions regarding the Clarion contract and felt that might be an area that could be reduced in the budget. His concern was the consulting fees as he was not sure it was what he wanted to spend money on at this time as the I35 corridor was still changing. Council discussed the pros and cons of the consulting services for the project. The goal was how to fine tune the project to get the most out of the dollars spent. A suggestion was to look at what other cities were doing as well as UNT along the I35 corridor. City of Denton City Council Minutes August 18, 2015 Page 3 Bissett discussed the potential lease of space of City Hall West. Staff was working with real estate and legal on a potential lease agreement plus a preliminary space layout to estimate the number of employees, proper adjacencies for efficiency and workflow. A potential agreement and preliminary space layout would be brought to Council for consideration. Springer noted that the Community Market reconstruction of the Exposition parking lot was not currently included in the budget. Council discussion was needed on how to use the $959,188 overage so staff could put hard numbers together. Council Member Roden questioned the use of HOT funds for the Kiwanis fireworks. He felt a large number of what was funded through the HOT funds did not meet the eligibility test and that this expense was a better use than most of the other things funded through the HOT funds. Mayor Watts agreed and felt the explanation was more of an opinion and that it was a good use of the funds. Council Member Johnson questioned if the HOT funding was final or if modifications could be made at this point in time. Bryan Langley, Assistant City Manager, stated that changes could still be made. Council Member Johnson stated he would like to fund the fireworks at the level as last year - $40,000. Council Member Roden suggested funding South by Southwest out of HOT funds in future years. Some of the HOT funded agencies had a significant increase this year such as the North Texas State Fair. Mayor Watts stated that the goal when looking at revenues versus expenses was to not dip into the Fund Balance and look at each individual request. The additional money for the Fair was for increased security and the increase for the CVB was a potential increased demand for marketing Denton. Council Member Wazny asked about the body cameras for the Police Department and questioned where the additional $171,000 would be used. Springer stated that it would add cameras for non - patrol officers. Captain Scott Fletcher stated that currently there were 80 cameras which provided enough cameras for the patrol officers for one shift such as traffic officers and officers with contact with citizens. The community expected everything the Police Department did to be recorded and some officers had purchased their own cameras. However, that was difficult with evidence management and court case management. Council discussed the possibility of applying for grants to purchase cameras, conditions when cameras would be used by off -duty officers at special events, and liability of the City during events if cameras were not available. City of Denton City Council Minutes August 18, 2015 Page 4 Council Member Roden asked about the funding for the Community Market and the distinction of what was being funded. Springer stated that the funds had been separated out such as the paving of the parking lot from other improvements. Council discussed the use of the Exposition parking lot such as being available for other outdoor events and not just the exclusive use by the Community Market. They agreed that a positive of the project was that it would create another space for community events that would have no negative impact on businesses. Mayor Pro Tem Gregory questioned if Council needed to have a decision at this meeting regarding which option to use for the projected overage. Springer stated that a decision should be made by the September 1st meeting so that staff could have it incorporated into the budget for approval on September 15th. He reviewed the options for the Council priority funding. Option A would fund recurring expenditures such as street maintenance; Option B would use the funds for one -time expenditures such as the Community Market parking lot; and Option C would use the funds to lower the tax rate from the proposed rate. A combination of the options could be used. Council discussed the implications of the three options on the budget, how much the tax rate would be reduced if all of the funds were used for that option, and how the supplemental packages would be affected by using Option C. Council also discussed possible assumptions on the growth of the City for upcoming years. A consideration was to take one -time expenses from the Fund Balance. Council Member Wazny requested information on the dollar amount between a 1.7 % and 5% inflation rate for employee increases. She suggested scaling back the increases for higher salaries such as salaries under $100,000 would be eligible for a 3 %. Mayor Watts questioned Council on what other items they wanted to add to the priority funding such as the Community Market to get an idea if the requests went over the amount. If so, then the list would need to be revised again. Mayor Pro Tem Gregory suggested thinking of one -time only items rather than recurring items. He was not in favor of a tax decrease and wanted to get as much money as possible for the Community Market facilities and for a homeless coordinator. Council Member Roden indicated that he too was interested in the Community Market and homeless coordinator. His desire would be to coordinate that position with other entities but noted that it would be ongoing expense. Council Member Briggs requested bus stop shelters be included. Council discussed the funding for the Community Market. Considerations discussed were that it would be an ongoing expense, whether it would be in competition with fixed stores, should a goal be that the Market be self - sustaining in future years, and that the location would be available for City of Denton City Council Minutes August 18, 2015 Page 5 other community events and not just for the Community Market. A concern was expressed not to send conflicting messages to other event partners. City Manager Campbell stated that the Exposition parking lot and the Community Market were two different items. John Cabrales, Assistant City Manager, stated that the original plan was to redo the parking lot in order to provide parking for training facility parking and overflow parking for staff at City Hall East plus overflow parking for DCTA riders. The cost included redoing the parking lot and removal of the slab from the building that was torn down. Mayor Pro Tem Gregory stated that there would still be pressures for the parking lot as the Community Market would be using it on Saturdays and could possibly compete with other entities using it. Council Member Roden felt that improving this space would provide a great place for events in the future and was a possible catalyst site for a business incubator concept. Council Member Johnson stated he would like to see more of a business plan from the Community Market moving from a fun event to a real business including how it might be a business incubator and how to be self - sustaining. He would also like to what the sales taxes were being paid at the Market. He suggested holding the $268,000 as a place holder until there was more information on a business plan. Mayor Watts said he struggled with the full $268,000. The space could not be used Saturdays for other events because the Market would have it leased for every Saturday and during the prime festival period it would not be available. There were two expenses that were specific to the Community Market that he would like to see subtracted from the $268,000 - signage for $5,000 and a media campaign for $10,000. He suggested $250,000 come from the Fund Balance or the financing of vehicles from the Fund Balance. He was not sure if the space study was necessary. If not done, that amount could reduce the total amount. Council Member Johnson stated his recommendations were to purchase the vehicles on a 5 year note at 1.5% interest instead of using cash, take the funds for the parking lot from the Fund Balance, and fund the Community Market at $253,000. Council Member Roden stated that a full fledge marketing plan in an innovation district would be needed for the Community Market but it would be on them to develop and operate it. Mayor Watts questioned if a joint meeting with TIF Board was needed regarding funds. Council Member Johnson felt there was a need to get started on an Economic Development Reserve Fund. He proposed placing $80,000 in such a fund from the financing of the vehicles. Mayor Watts suggested expanding the amount to $100,000. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. City of Denton City Council Minutes August 18, 2015 Page 6 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 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 City of Denton City Council Minutes August 18, 2015 Page 7 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 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. E. ID 15 -716 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] F. ID 15 -717 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 City Council Minutes August 18, 2015 Page 8 G. ID 15 -762 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. H. ID 15 -748 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's attorneys regarding ID15 -744 of the August 18th, 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. 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. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS /PRESENTATIONS City of Denton City Council Minutes August 18, 2015 Page 9 A. ID 15 -742 Mayor's Summer Youth Jobs Program Mayor Watts presented the proclamation for the Summer Youth Jobs Program. Council Member Roden motioned, Mayor Pro Tem Gregory seconded to suspend the Council's rules to allow the Citizen Reports at the end of the meeting to be moved to the beginning of the meeting. On roll call vote, Council Member Briggs "aye ", Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Mayor Watts announced that Consent Agenda Item 4 S. would be pulled from the agenda with no public discussion at this meeting. 3. PRESENTATION FROM MEMBERS OF THE PUBLIC 1. ID 15 -746 Monica Jones regarding a complaint on Animal Control and Code Enforcement. Ms. Jones was not present at the meeting. 2. ID 15 -689 Willie Hudspeth regarding City Hall. Mr. Hudspeth was not present at the meeting. 3. ID 15 -750 Matthew Sallack regarding the positive effect of the Denton Community Market. Mr. Sallack stated that he was a vendor at the Community Market and a member of the Board of Directors. He felt Denton had a strong movement for the business community. The Market acted as a hub for businesses to connect with customers. Citizen Reports from the end of the meeting were considered. 1. ID 15 -751 Vicki Oppenheim regarding Denton Community Market - snapshot of emerging Denton. Ms. Oppenheim spoke on the Market's request for budget consideration for a new site for the Community Market. She listed the needs of the Market for a successful location and requested Council consider their request as they were a perfect addition to the area. 2. ID 15 -752 Kati Trice regarding the Denton Community Market. Ms. Trice stated that the Community Market was an arts organization as well as for other producers. She felt that the Market was a small business incubator that allowed starter businesses to grow into a brick and mortar business. City of Denton City Council Minutes August 18, 2015 Page 10 ID 15 -755 Ryan Crocker regarding the Denton Community Market. Mr. Crocker stated that he regularly attended the Market. He had 11 acres where he had an organic farm and sold his produce at the Market. The project at the Railyard district was exciting to coordinate with the Community Market. 4. ID 15 -756 Emily White regarding the Denton Community Market. Emily White stated she was a volunteer for the Market and was an avid supporter. The Market provided access for local food, music entertainment and artists. ID 15 -757 Jason Schreiber regarding the Denton Community Market. Mr. Schreiber stated that his business had been at the Community Market for over two years and was doing a large business. People traveled from the Dallas -Fort Worth area to Denton to purchase their products. Due to their popularity at the Market, they have been able to grow their business worldwide. He requested Council provide funding for the Market. 6. ID 15 -758 Kimberly Bien regarding the Denton Community Market. Ms. Bien stated that she was a vendor at the Community Market. Her business was growing due to her sales at the Market. She was also a member of the Board. The Market connected people throughout the community and asked Council to consider their budget needs. 7. ID 15 -759 Jeffrey Rous regarding funding for the Denton Community Market. Mr. Rous indicated that he was a Board member and a professor of Economics. He questioned whether an investment on a project increased the value of the property. The investment in the Community Market would produce an increase in the value of the area. People selling or buying at the Market felt that it increased their quality of life in Denton. Others coming from outside Denton helped contribute to the local economy. All of that would increase property values. ID 15 -760 Agatha Biens regarding the Denton Community Market. Ms. Biens stated that before she moved to Denton she searched for what kind of Farmer's Market was available. The fact that one existed in Denton attracted her to the community. The Market symbolized the support of local businesses to local goods and local independent businesses. It was also an important space of community for her. 2. ID 15 -689 Willie Hudspeth regarding City Hall. Mr. Hudspeth arrived at the meeting and spoke on what was happening to his small business and what the City Manager and his staff were telling him to do. He felt that the City Manager and his staff were not talking. He would keep coming back to Council to speak on his issue. Every day people dumped items on his property that he ended up being responsible for. His other issue was that he could not park his vehicle on a non - improved surface. City of Denton City Council Minutes August 18, 2015 Page 11 C. Additional Citizen Reports. There were no additional speakers. 4. CONSENT AGENDA Mayor Watts noted that Items I, J, R, and S would be pulled from consideration. Council Member Johnson motioned, Mayor Pro Tem Gregory seconded to adopt the Consent Agenda and accompanying ordinances and resolutions with the exception of Items I, J, R and S. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -238 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. l; 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). Resolution No. R2015 -020 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 Texas Commission on Environmental Quality, and the State of Texas, and providing for an effective date. Ordinance No. 2015 -239 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. Ordinance No. 2015 -240 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 of Denton City Council Minutes August 18, 2015 Page 12 City; providing the authority for issuance of tree rebates; committing proceeds from the tree fund; and providing an effective date. Ordinance No. 2015 -241 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. Ordinance No. 2015 -242 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. Resolution No. R2015 -021 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. Ordinance No. 2015 -243 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. This item was not considered. 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 Association, and providing an effective date. This item was not considered. 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. Ordinance No. 2015 -244 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 City of Denton City Council Minutes August 18, 2015 Page 13 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) Ordinance No. 2014 -245 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). Ordinance No. 2015 -246 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 5864- awarded to WRA Architects, Inc. in an amount not -to- exceed $122,500). Ordinance No. 2015 -247 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). Ordinance No. 2015 -248 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). Ordinance No- 2015 -249 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 City of Denton City Council Minutes August 18, 2015 Page 14 landscape improvements located within the right of way of state highway routes; and, providing an effective date. Ordinance No. 2015 -250 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). This item was not considered. 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 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). This item was not considered. 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. The minutes listed below were approved. T. ID 15 -747 Consider approval of the minutes of July 21, 2015. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Ordinance No. 2015 -251 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 of Denton City Council Minutes August 18, 2015 Page 15 City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. Aimee Bissett, Director of Development Services, stated that this incentive grant was for Victor Equipment. Chapter 380 of the Local Government Code allowed incentive agreements for public purposes such as for economic development. She presented the background of Victor Equipment indicating that it had been in the Denton area since 1960. She compared the current facility with the expansion project. The incentive analysis was considered by the Economic Development Partnership Board. Their recommendation was that a $6.5 million investment would be required, retain 85% of employees with commensurate salaries, a 65% incentive for 7 years which would be an annual amount of $71,734 and $502,138 for the total incentive. Benefits to the City were reviewed. Council Member Johnson 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 Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 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. Mayor Pro Tem Gregory motioned, Council Member Wazny seconded to approve the nominations as listed in the agenda materials. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. C. ID 15 -737 Consider appointing a nominating committee to recommend appointees to serve on the Economic Development Partnership Board. Aimee Bissett, Director of Development Services, reviewed the makeup of the board indicating that the nomination process was different for the Board from other city boards /commissions. A nominating committee made up of two Council Members and one member of the Chamber of Commerce recommended nominations to the Council for approval. The Black Chamber of Commerce and Hispanic Chamber of Commerce would solicit nominees from those organizations as well. The Chamber of Commerce asked that their representative on the nominating committee be Virgil Strange. The Council needed to select the two Council Members for the Committee. Council Member Johnson stated that he and the Mayor were the current members on the Chamber committee and suggested that they be on the nominating committee as they were already involved in the meetings. Mayor Watts stated that he would like someone else to be in his place. Council Member Roden and Mayor Pro Tem Gregory volunteered for the nominating committee. City of Denton City Council Minutes August 18, 2015 Page 16 Council Member Johnson motioned, Council Member Roden seconded to approve Council Member Roden, Mayor Pro Tem Gregory and Virgil Strange to the nomination committee. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 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. The Mayor opened the public hearing. Chuck Springer, Director of Finance, stated that this public hearing was required by State law when the tax rate would exceed the effective rate. No one spoke during the public hearing. The Mayor closed the public hearing. No action was required on this item. Ordinance No. 2015 -252 B. SI15 -0001b 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). Aimee Bissett, Director of Development Services, stated that this was an amendment to the DDC pertaining to the uses of the tree fund. The tree fund expenditure criteria detailed the desired types of projects that would be funded by the fund. Percentages of fund use included 75% for tree maintenance, 15% for the purchase of wooded property, 5% for a tree inventory and 5% for public education. The proposal was to expand the types of expenditures that would be permitted for existing and new tree programs facilitated by Keep Denton Beautiful. The proposed changes would allow for the purchase of trees for planting on private properties and the funding of a tree rebate program to encourage planting trees on privet property. The objective was to leverage outside resources such as labor, materials or funding thereby allowing a greater number of trees to be planted at a reduced cost. The Planning and Zoning Commission and staff recommended approval. Loren Barker, Keep Denton Beautiful (KDB), presented an overview of the projects. KDB was proposing a series of programs for public education programs, a rebate program, a business targeted program to place trees on private businesses, neighborhood and small scale giveaways such as red bud trees giveaways at the Red Bud Festival. They would like to give away 12,000 trees in three years. No one spoke during the public hearing. City of Denton City Council Minutes August 18, 2015 Page 17 The Mayor closed the public hearing. Council Member Roden 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 Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 7. PRESENTATION FROM MEMBERS OF THE PUBLIC These items were moved to the beginning of the meeting. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Briggs suggested exploring a roundtable discussion between the City police and fire for an evacuation plan around gas wells. Mayor Watts requested an update on the new crew that was authorized for wastewater and water line installation in terms of how many feet they had installed to this point and how many now to see the impact. Include what streets were expedited in conjunction with the new crew. B. Possible Continuation of Closed Meeting topics, above posted. Mayor Watts announced that the Council would be returning to the Closed Meeting to consider Close Meeting Items C, E, F and G listed on the Agenda. Council returned to Open Session at 10:20 p.m. and with no further business, the meeting was adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNFIER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES August 25, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, August 25, 2015 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tern Gregory, Council Member Wazny and Mayor Watts. ABSENT: None. 1. Work Session Reports A. ID 15 -774 Meet with representatives of Texas Woman's University to receive information and discuss campus planning issues including but not necessarily limited to the use, re -use, or development possibilities of the TWU golf course. Chancellor Feyten stated that she and Dr. Mendez -Grant would be speaking to the Council regarding the TWU golf course. A University Task Force had met to provide advice on use of the course which included the financial challenges associated with the course. It was found that the majority of usage was from people in the community. Their intent was to listen to what Council had to say and provide them input on the options. Dr. Mendez - Grant, Vice - President of Student Life, presented some facts concerning the University and indicated that the University had 15,000 students last year with a diverse student body. The charge for the Committee was to explore all possible venues available regarding the TWU golf course and the land on which the golf course existed. They were looking for a positive revenue stream for the course, if possible. Finding of study showed that the number of rounds played by faculty, staff and students was 3% combined with the primary use by people outside the University. In terms of operations, there was a five year trend of losing money on the course. The course was short with a number of par 3 holes and with the advancement in balls and equipment was not as challenging a course as people might want. The course took 108 acres of the total campus area. There was also a housing shortage on campus which was taken into account for the space. In terms sustainability, the course used 20 million gallons of water per year at $100,000 per year. The consultant also indicated that a minimum of a $1 million investment was needed for an irrigation system as the current system was old and the use of potable water for the course was not an attractive option at this time. There was also a need for a golf cart storage unit. Council Member Roden felt that the University wanted to get out of the golf course business and questioned if that was correct. Chancellor Feyten stated that was part of it. The University was working on a strategic plan master plan for all of the assets of the University. While it was not ready yet it was part of the decision making process. They were concerned with the low usage with the university community as students were not using it but were paying for it. Students coming to the University were not the ones that would be playing golf as most were commuters to the campus. This had a community impact as they were the one using the course. City of Denton City Council Minutes August 25, 2015 Page 2 Council Member Wazny stated that universities were for education and education was not golf. While it might have been a good idea years ago, looking at the whole scenario there was not one part that made sense. There was another golf course in Denton that was open to the public so the University should not make decision on the fact that there wasn't any place else to play as that was incorrect. Her position would be to close the course, get the University to grow and make it all it could be. Council Member Johnson stated that if 80% of the students were commuters and didn't live on campus, did the University have a percentage for a target goal for students on campus property. Chancellor Feyten stated that was part of the strategic plan. This was the first time embarking on a comprehensive strategic plan and not just an academic plan. Dr. Mendez -Grant stated that currently the University was not allowing each student who requested to live on campus the opportunity to do that. Council Member Hawkins stated that even if the City invested money in the golf course it would still be a short course. Chancellor Feyten stated correct plus there was no space for a driving range and no way to change the entrance. Council Member Roden stated that future uses of the course included mobility issues such as Mingo Road. As the conversation continued, he suggested looking into those mutually beneficial needs. He had no interest in the City getting into the golf course business and the community was not calling for it in great numbers. Mayor Watts appreciated the conversation and commitment to team work between the two entities. While it was an affordable course to play at this time, it took up over 1/2 of the campus. As the University continued to decide what to do with the course he suggested keeping in mind mobility needs in the area. Mayor Pro Tem Gregory stated that he was not opposed to the course staying there but if developed he hoped a green space would be included as the area was very lovely. Chancellor Feyten stated that the University was committed to the green space as they knew that one factor to attract students to a campus was the beauty of the campus. Mayor Pro Tem Gregory felt it might be helpful to hear from staff about the need for a municipal course. B. ID 15 -784 Receive a report; hold a discussion, and give staff direction regarding the 2015 -16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. Chuck Springer, Director of Finance, presented a summary of the direction given last week from Council. City of Denton City Council Minutes August 25, 2015 Page 3 Council Member Hawkins asked about the deferred maintenance for City Hall West. Springer stated that the direction was to not do maintenance to City Hall West until a decision had been made on what to do with the building. The money from that debt would be used for the parking lot. Council Member Wazny stated that this was a suggested budget from staff to Council and she wanted staff to know that it was fluid. She had a number of suggestions for possible consideration. 41— take the $150,000 funding that was earmarked for the CVB and put it towards the Community Market as the Convention Center had not yet been approved. There was a $50,000 Farmer's Market Grant that could be applied for which would bring the amount up to $200,000. 42 - $125,000 for a consultant to review the pay plan structure. She requested more information on that consultant. 43 - $78,000 for Learning Management software for the LEEP program. She requested more information on that request. 44 - Space study. The Mayor had already indicated that he was not comfortable spending $200,000 on a space study. 45 - $84,000 for care for plants on Hickory Street and for a new employee. She felt that was a lot of money for one employee to do that work. 46 — the funding for the body cameras for the Police Department needed to stay. 47 - $250,000 for vehicles. Council had not talked about the $2.96 million financing for the rest of the vehicles. She felt it was a low amount for a cash investment with interest rates being very low at this time. Her suggestion would be to forget the money for the next 5 years which would free up that money. 48 - health care costs and city payroll. The City was spending $20 million a year for health care costs which was a lot of money taxpayers used to take care of staff. She did not see anything of a payroll reduction which she had asked for. In 2012 -13 the average pay increase was 3 %. In 2013- 14 it also averaged a 3% plus a 3% for this year. That was 9% for three years with a theoretical cap of 15% if received 5% over the 3 years. Her suggestion would be those salaries at $50,000 and below be capped at 3 %. $51,000 to $100,000 be capped at 1.5% and $100,000 and above have a salary freeze. However, that would not include Police and Fire. 49 - Fleet Management was spending less on fuel which was down $2 million from the 2013 -14 budget. Springer stated that a good portion of that decrease was due to DCTA no longer purchasing fuel from the City. City of Denton City Council Minutes August 25, 2015 Page 4 410 - $200,000 for website enhancement. She questioned if the CRM would include requests related to Planning and what were the requests. She also asked if there would be a request for proposal process and how the amount needed would be determined. Springer stated that a competitive process would be done and that the amount was an estimate of the cost to upgrade the website. It would include any type of citizen request going through an electronic process. 411— In 2009 when the budget was tight the positon of Fire Training Caption was eliminated. She felt it was an important position for the upcoming ISO rating and would like to include it in the budget. 412 - asphalt recycle machine and 5 new employees. The discussion had centered on a time factor rather than a money saver. She would like the five new employee costs justified as these were on going costs. 413 — the Animal Shelter was understaffed with three options presented for positions. She had reached out to other vets with shelter experience and asked them what was needed. 100% replied having a vet tech five days a week would be more productive. John Cabrales, Assistant City Manager, stated that the City currently was under contract for another full time vet tech at a cost of $62,816. Council Member Wazny stated that her recommendation would be to include another new position. In the long term between now and next spring, look at the difference between hiring the City's own people and not work through a 3rd party understanding that salaries would be lower but would have benefits. She requested a Work Session on where the contract was now, what it was paying and a competitive rate with other shelters in the area. Council Member Hawkins indicated that he struggled with a payroll differentiations and questioned what that would do towards morale. Salaries were based on the market and he concerned to not send a message that because you make a certain amount of money, you do not get a raise this year. He asked how long this would be done if approved. Council Member Wazny stated that her suggestion was only for this next year based on raises for the past 3 years. She knew the City was spending a lot of money on staff salaries and was questioning some of those upper salaries. Council Member Hawkins stated that he would worry about the message that would send to staff and was against that type of proposal. Raises were based on merit and if doing a good job, an employee should be able to get a raise. Council Member Johnson stated that some of Council Member Wazny's comments were questions, some were she did not think the proposal should be done, and some were she thought they should be done. He questioned if there should be discussion on those items at this meeting or wait until next week for staff responses. City of Denton City Council Minutes August 25, 2015 Page 5 Mayor Watts stated if some of Council Member Wazny's suggestions were going to be integrated into the budget, there needed to be a consensus on what want to do differently. He also had a few comments and there was a time when Council was going to have to decide whether or not to change the budget proposals. Council Member Johnson suggested going through the list to determine those for clarification and those that needed discussion to determine a consensus for next week. Council Member Roden stated that time was important for some of the items. He suggested working through some of those that did not involve significant cuts or additions. Mayor Pro Tem Gregory stated that he would be open to some of the items presented but on others he would want background information from staff before starting to discuss. He indicated that he was in a different place with payroll funding. There were years when there had been salary freezes and he was not in favor of funding on the backs of employees. Pay had to remain competitive to retain employees. Mayor Watts indicated that he was not sure this was the only place changes had to be made of additional amounts. He suggested reducing the amount for the facility study. He was uncomfortable having that in the budget because one was done in prior years and he would like to see that before making a decision. He agreed with the cash option for vehicle funding for next year. There was no notation about Clarion lowering their estimate. He asked for a report on CDBG funds not spent from prior years. He noted that there was $1 million in the red light camera fund and asked for an explanation of those funds. He requested information on a budget comparison from last year for total compensation and comparison of employees in departments over the years. He was in agreement with the GIS tech position in Planning but indicated that he did not want to get locked into this matrix. Mayor Watts asked about the possibility of moving HOT funds from the Convention Center. Jon Fortune, Assistant City Manager, stated that as the project advanced and during the construction period a key phase was the marketing phase. The current funds were earmarked for the future to begin marketing. Council Member Wazny stated that a convention center had not been approved at this time. Her preference was to take $150,000 from that fund for a more immediate need. Mayor Watts stated that he would like to hear this was a legitimate use of HOT fund money. Springer indicated that he would need to consult with Legal to determine if that would be allowed. Council Member Johnson felt that it would be better to start earlier in the process. He felt maintenance on City Hall West did not make sense to spend the dollars until the use of the building was decided. He thought it would be good to right now use debt for everything possible as the interest rate was so low. Next year the procedure could change if the situation changed. He suggested debt funding the parking lot and the vehicles. He didn't want to eliminate the facility study altogether but wanted staff to do the work and review the 2001 study. City of Denton City Council Minutes August 25, 2015 Page 6 Council Member Roden stated that the space study had so many contingencies. He suggested that to have flexibility moving through the year, that the $150,000 be earmarked with direction not to use the funds until Council had more in -depth discussion. Mayor Watts indicated he was in favor of that procedure. Mayor Pro Tem Gregory felt that it would not be a bad time to debt service the vehicles but he was not sure he wanted to wait 5 years. He wanted to get moving on long term issues. Mayor Watts requested a special Work Session to review the prior space study. Council Member Roden asked about the CRM /website issues. There was the expectation from citizens to find the answers they needed on the website and felt that there was a need for some major overhauls for the site. Alison Ream, Administrative Services Manager, stated that the project involved designing a new website for the City. It would improve the functionality to find where to go, payments on line and CRM calls. The cost figure was determined by an external survey of users and in -house users and what they wanted the website to look like. Mayor Watts asked about the use of the Economic Development fund to expand the scope to include other companies that wanted to do things Downtown. There currently was $40,000 in that fund which could be used somewhere else. Council discussed the economic development fund, uses of the fund, what the money should be now used for, and whether the funds should be used in other locations in the City. Council Member Johnson stated that his recommendation would be to take $100,000 in the Downtown Investment Grant and use as seed capital for an Economic Development Investment Fund. Council Member Wazny was in agreement with Council Member Johnson's recommendation. Council Member Johnson stated his recommendation would include adding the $100,000 to the $80,000 already in the fund. Council Member Roden felt this would be a major philosophical shift. The fund would be for drawing other types of businesses. He would be in favor of a more comprehensive conversation on the proposal. Mayor Watts suggested leaving the funds in the budget for a more extensive conversation before it was spent. Council Member Johnson recommended suspending allocations until Council had such a conversation. Bissett stated that there was still money allocated in the current budget cycle. She would allow applications under the existing budget cycle and change at the beginning of the new fiscal year. City of Denton City Council Minutes August 25, 2015 Page 7 Mayor Watts felt that moving forward for the five year forecast he was not sure there was money for a new behavioral health leadership team within the city. Part of that team was the appointment of two people and he recommended a future agenda item to determine who those two appointees should be. Mayor Pro Tem Gregory felt that as staff came back with answers to questions for other funds being available, to remember that the City was still not where it needed to be for road repairs. Funding was still short in the amount needed to stabilize overall road conditions. Council Member Johnson asked what the percentage total of the bond money for streets had been spent to far. Council Member Roden stated that the City was spending lots of money on roads but were depending heavily on bond funding for street fixes. He suggested looking at scenarios on franchise fees over the course of the next ten years and the implication on the General Fund. A goal needed to be set looking at franchise fees. Mayor Watts stated that there were two different components of streets. Reconstruction could not use bond funds. New construction could not use franchise fees for cash funding. Council discussed the pros and cons of the street maintenance fund, the use of the funds, whether the OCI rating was an adequate determination of street conditions, setting a goal and how to get to that goal in terms of funding for operation and maintenance. Following the completion of the Work Session, the City Council convened in a Special Called Closed Meeting at 4:53 p.m.to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -613 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies relating to selecting and acquiring generation resources for the City; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. B. ID 15 -614 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric ( "DME ") regarding public power competitive and financial matters; communication plans and strategies for City of Denton City Council Minutes August 25, 2015 Page 8 possible generation improvements to the DME system. Discuss, deliberate and provide Staff with direction. C. ID 15 -772 Deliberations Regarding Real Property - Under Texas Government Code Section 551.072; Deliberations Regarding Economic Development Negotiations - Under Texas Code Section 551.087; 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, exchange, lease or value of real property located generally in the 200 block of W. Mulberry, the 200 block of N. Elm, the 200 block of W. McKinney, the 200 block of N. Cedar, and the 200 block of E. McKinney in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter 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. The Council returned to Open Session at 7:00 p.m. and with no further business, the meeting was adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -891, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider adoption of an ordinance approving an agreement between the City of Denton, Texas, and the Denton Chamber of Commerce regarding an Economic Development Partnership; and providing an effective date. BACKGROUND The City Council and the Denton Chamber of Commerce first entered into an economic development partnership agreement in 1986. The attached contract represents the 2015 -16 annual agreement and funding for the Denton Chamber of Commerce Economic Development program. The City's participation consists of General Fund and Utility Fund dollars and provides for the administration and operation budget of the Chamber of Commerce that includes: • Prospect generation activities • Marketing activities, i.e. trade shows, publishing /printing, website administration, marketing materials • Economic Development Partnership Board support Small Business Development Center support In addition to City funds, the Chamber of Commerce solicits $63,875 private- sector funding to enhance marketing and allies development efforts. The proposed 2015 -2016 contract with the Chamber has no substantial amendments from the 2014 -15 contract. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Economic Development Partnership Board reviewed the $242,896 budget and work plan for submitted by the Denton Chamber of Commerce for the 2015 -16 fiscal year at their July 28, 2015, meeting and recommended approval (8 -0). The Economic Development Partnership Board reviewed the agreement between the City of Denton, Texas, and the Denton Chamber of Commerce regarding the Economic Development Partnership at their August 25, 2105, meeting and recommended approval (9 -0). FISCAL INFORMATION The proposed contract provides for a total City contribution of $242,896: $66,242 from the General Fund and $176,654 from the Utility Funds (Electric, Water, Wastewater, and Solid Waste). City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -891, Version: 1 EXHIBITS Exhibit 1- Ordinance and Contract Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Caroline Booth Assistant Director for Economic Development City of Denton Page 2 of 2 Printed on 9/10/2015 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE DENTON CHAMBER OF COMMERCE REGARDING AN ECONOMIC DEVELOPMENTPARTNERSRIP; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton deems it is in the public interest and serves a municipal and public purpose to enter into an agreement with the Denton Chamber of Commerce for the purpose of providing for a program to promote economic development through the joint effort of the parties hereto; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. City Council finds that the Agreement between the City of Denton and the Denton Chamber` of Commerce serves a valid municipal and public purpose and is in the public interest. SEC_�TION 2. The Agreement between the City of Denton and the Denton Chamber of Commerce attached hereto and made a part hereof by reference (the "Agreement") is hereby approved. The Mayor, or in his absence, the Mayor Pro Tern, is hereby authorized to execute the Agreement on behalf of the City of Denton. The City 'Manager is hereby authorized to carry out the City's rights and duties under the Agreement including authorization for the expenditure of funds provided for in the Agreement. SECTION 3. This Ordinance shall become effective October 1, 2015, upon its passage and approval, PASSED AND APPROVED this the - day or 2015 ATTEST: JENNIFER WAITERS, CITY SECRETARY W ���014slw BY: ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE This Agreement is made between the City of Denton, Texas, ("City") and the Denton Chainber of Commerce ("Chamber") for the purpose of providing for a program to promote economic development through the joint effort of the parties hereto, who in consideration of their mutual promises, agree as follows: 1. Chamber Office of Economic Development ("Office"), During the term of this Agreement, the Chamber shall maintain an Office of Economic Development managed by the Vice President of Economic Development, who shall perform the duties of the, office. 2. Duties of the office, The Chamber of Commerce shall: a. Develop and maintain positive relationships with key economic development allies, including but not limited to, private sector investors, the Governor's Office of Economic Development, Dallas Regional Chamber, and national, regional and local real estate brokers and land developers. b. Maintain memberships and involvement in economic development organizations, such as the International Economic Development Council and Texas Economic Development Council. c. Work in cooperation with the Assistant Director for Economic Development for the City of Denton to implement the two-year Strategic Action Agenda as adopted by the Economic Development Partnership Board in 2015. d. Work in cooperation with the Assistant Director for Economic Development for the City of Denton to evaluate existing marketing efforts, establish and/or amend a Marketing Plan, and produce branding and marketing materials to promote Denton through a collaborative effort with economic development stakeholders, including Denton Enterprise Airport, Denton Municipal Electric, University of North Texas, Texas Woman's University, North Central Texas College, Denton Independent School District, private Chamber investors, and others as appropriate. The plan will be presented annually to the Economic Development Partnership Board and will include a plan/timeline for the placement of advertising in trade publications, the use of social media, and the upgrade of economic development materials and website (DentonEDP,coni). e. Work in cooperation with the Assistant Director for Economic Development for the City of Denton on the Strategic Action Agenda's Recruitment Team to identify the attributes of desirable businesses, identify target industries, and develop recruitment strategies and a cohesive Recruitment Plan through a, collaborative effort with economic development stakeholders, including Denton Enterprise Airport, Denton Municipal Electric, University of North Texas, Texas Woman's University, North Central Texas College, Denton Independent School District, private Chamber investors, and others as appropriate, The Recruitment Plan will be compiled by the Recruitment Team, which will be coordinated by the Assistant Director for Economic Development with the City of Denton. 11c plan will be presented to the Economic Development Partnership Board annually and will include strategies for recruitment, division of recruitment duties, and the identification of target industries. f. Represent Denton Economic Development and recruit prospective businesses through attendance at target market trade shows, consultant's forums, targeted business meetings/conventions and other special events; and coordinate travel calendar and budget with the City of Denton to identify strategies to allocate staff and financial resources for a cohesive presence at events and trade shows. 9. Serve as a principal point of contact for prospect communications, the production and submittal of site proposals, prospect visitation itineraries, and prospect follow-up for businesses interested in locating in Denton. Work in cooperation with the City of Denton's Economic Development Division to facilitate prospect responses with other local allies. Share lead information with the Assistant Director for Economic Development for the City of Denton on a frequent basis during regular partnership meetings, and with other members of the Recruitment Team as appropriate in order to compile the most comprehensive site proposals possible utilizing all resources available. As appropriate, Page 2 share electronic copies of site proposals with Recruitment Team for feedback and suggestions regarding strategy and content. h. In conjunction with the City of Dentoll'S Economic Development Division, develop and maintain positive relationships with Denton businesses through a business retention and expansion program. i. Work closely with the City of Denton's Economic Development Division in the development of programs and policies to enhance economic development, including but not limited to incentives, business retention and expansion visits, retail recruitment, strategic planning and other areas of mutual interest. j. Work in coordination with the Assistant Director for Economic Development for the City of Denton to carry out objectives for the year, including the development of a "shovel- ready" sites program, work-force development strategies, and the development and implementation of a Strategic Plan, Work in cooperation with the City of Denton to identify performance measures for economic, development annual work, plan and objectives. k. Prepare and obtain approval of the annual work, plan and budget from the Economic Development Partnership Board. Provide the Board with monthly activity reports. On a quarterly basis, include performance measures and accomplisluilents, and financial reports that include expenses by category and budget-to-actual figures. Tile financial report will be reviewed and approved quarterly by the Economic Development Partnership Board. 3. Support Services and Funding. 'rhe Chamber shall provide the office space, equipment and support staff necessary to the operations of the Chamber Office of Economic Development. For the fiscal year 2015-2016, the Chamber shall solicit and contribute private sector funds in the amount of $63,875, and the City shall provide funding in the amount of $242,896, which may be funded from the General Fund, the Utility Fund, or some combination thereof. The balance of any unused City funds shall be returned to the City at the end of the fiscal year. Any funds provided by the City pursuant to this Agreement shall be retained in an account separate and segregated from the Chamber's, general operating fund and shall only be used for the purpose provided for in this Agreement. 'rhe Chamber and the Office shall keep current and Page 3 accurate records of all funds received and expended, which shall be subject to inspection and audit by the City at all reasonable times, All such financial records shall be subject to the Texas Public Information Act, Tex. Gov't Code Ch. 552, 4. Status of Office. The Chamber Office of Economic Development shall be under the direct supervision and control of the Chamber and all personnel of the Office shall be considered employees or agents of the Chamber, The Chamber shall be responsible for the processing of all benefits or payment of liabilities of such employees or agents, including the withholding or payment of personal income or social security taxes, as provided by applicable law, and the payment of worker's compensation premiums. The Chamber shall maintain policies of insurance in the minimum amounts required by law to protect against liability arising from. the operation of any vehicles used by employees of the Office and the Chamber agrees to defend against, and indemnify and hold the City, its elected officials, officers, agents, employees and representatives harmless from any claim arising from any negligent act of such employees. 5. Term of Agreement. This Agreement shall be effective frorn October 1, 2015 through September 30, 2016. Either party may terminate this Agreement by giving written notice to the other party with thirty (30) days advance notice, in which case any unexpended funds provided by the City shall be returned to the City. EXECUTED this the day of 2015, CITY OF DENTON CHRIS WATTS, MAYOR Page 4 IL ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY Page 5 DENTON CHAMBER OF COMMERCE m. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -904, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: September 15, 2015 SUBJECT Consider adoption of an ordinance approving the expenditure of funds for the purchase of three (3) self check machines, three (3) disc media unlockers, and associated maintenance and license costs for three (3) years for the City of Denton Public Library System which are 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 5916- awarded to 3M Library Systems for self check machines and disc media unlockers in the amount of $48,399.54 and three (3) year maintenance and license costs in the estimated amount of $92,325.10 for a total award in the not -to- exceed amount of $140,724.64). FILE INFORMATION This item is for the purchase of two (2) 3M SelfCheck System Model 8421 (R- Series) machines- one each for the Emily Fowler Library and the South Branch Library, and one (1) 3M SelfCheck System Model 8422 (R- Series) for the North Branch Library (Exhibit 1). The purchase of the three (3) self check machines along with three (3) disc media unlockers will complete the replacement of six (6) aging units, two per each library location. Three self check machines were purchased earlier this fiscal year, so this additional purchase of three (3) machines will complete the change out. Older self check machines run on Windows XP, which is no longer supported. All of the older machines are subject to out of service periods leading to inconvenience for customers and increased workload for staff. Self check out materials accounts for nearly 40% of total transactions, allowing circulation staff to work with customers who have more complex interactions. All current library materials management software is provided by or works with 3M products, including self check machines, security gates, circulation desk check in hardware, Radio Frequency Identification (RFID) tags in materials, and Decision Center software which reports on the movement of materials (Exhibit 2). 3M Library Systems is the developer and sole manufacturer of the 3M SelfCheck System including the 3M QuickConnect Interface software (Exhibit 3). Section 252.022 of the Local Government Code provides that procurement of commodities and services that are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) Council was presented with the option to purchase the three (3) remaining self check and disc media unlocker City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -904, Version: 1 systems from library funds from the 2014 -2015 fiscal year during the budget discussion on August 6, 2015. RECOMMENDATION Staff recommends award of this item to 3M Library Systems in the amount of $140,724.67. This includes the purchase of the three (3) self check machines and disc media unlockers and a three (3) year estimate for maintenance costs and licenses associated with the equipment (Exhibit 2). PRINCIPAL PLACE OF BUSINESS 3M Library Systems St. Paul, MN ESTIMATED SCHEDULE OF PROJECT A purchase order for the procurement of the equipment will be issued upon Council approval. FISCAL INFORMATION Funding for this equipment will come from Library Materials Acquisition account 300050444.1350.30100. Requisition 4125573 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Quote for Self check Machines Exhibit 2: Estimated Maintenance and License Costs Exhibit 3: Staff Sole Source Memo Exhibit 4: Sole Source Letter from 3M Library Systems Exhibit 5: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Terri Gibbs at 349 -8776. City of Denton Page 2 of 2 Printed on 9/10/2015 EXHIBIT 1 Today's Date: 07/31/15 3M Center, 235 -3A -09 Expiration Date: 10/29/15 St. Paul, MN 55144 -1000 Quotations are good for 90 days, All dates are Office: 800 - 328 -0067 ext. 2 based on ship dates. Order roust ship wiittniiin the 90 Fax: 800 - 223 -5563 day wiiindow. After 90 days, quotation expiires. Contact 311M for a New Quotation,. Ship, to: (Destination of Gourds) Bill to: (Agency to Invoice) Library Name Denton Public Library Name Address Address City, State, Zip Denton, Texas 76201 City, State, Zip Contact Name Cindy Carter Accounts Payable Contact Name Email Address cvnth ia.carter�nton. com Email Address Phone # 940 - 349 -8754 Phone # Fax # Fax # P.O. # and Signature (signature required if customer is using this form as an order) Requested Delivery and Install Dates Quantity Stock Number Description Unit Price Good Through: Extended Price 10/29/15 $0.00 $0.00 Emily Fowler Library - 502 Oakland Street, Denton, Texas 76201 $0.00 $0.00 1 754700- 3672 -6 3M- SelfCheGkTM System Model 8421 (R- Series) Kiosk (Black) Standard Top $11,004.00 $11,004.00 1 75- 4700 - 3734 -4 3MT" Model 1230 Disc Media Unlocker $4,753.00 $4,75100 * *Replacing existing Selfcheck S/N 6410097 $0.00 $0.00 1 Shipping for Emily Fowler $581.62 $581.62 $0.00 $0.00 North Branch Library - 3020 N. Locust Street, Denton, Texas 76209 $0.00 $0.00 1 754700- 3520 -7 3MTM SelfCheGkTM System Model 8422 (R- Series) Tabletop (Black) $10,404.00 $10,404.00 1 75- 4700 - 3734 -4 3MT" Model 1230 Disc Media Unlocker $4,753.00 $4,75100 * *Replacing existing Selfcheck S/N 7412197 $0.00 $0.00 1 Shipping for North Branch $565.30 $56530 $0.00 $0.00 South Branch Library - 3228 Teasley Lane, Denton, Texas 76208 $0.00 $0.00 1 754700- 3672 -6 3MTM SelfCheGkTM System Model 8421 (R- Series) Kiosk (Black) Standard Top $11,004.00 $11,004.00 1 75- 4700 - 3734 -4 3MT" Model 1230 Disc Media Unlocker $4,753.00 $4,75100 * *Replacing existing Selfcheck S/N 7410399 $0.00 $0.00 1 Shipping for South Branch $581.62 $581.62 $0.00 $0.00 $0.00 $0.00 *Pricing above includes installation and 15 month warranty - Zone 2 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Subtotall $48,399.54 Shipping and Handling billed as actual at time of shipment Shipping & Handling Feel See Above Total * $48,399.54 3M Sales Consultant 3M Sales Consultant Phone # and email * Applicable Sales Tax will be applied Shawn C. Brumley 940 - 367 -9738 scbrumle mmm.com 3M Customer Service Representative Maureen Waid 3M Customer Service Representative Phone # 3M Customer Service email 651- 575 -5662 13mlibrarvorders(d).mrn Corn Mail or Fax purchase order to the address above. Terms are NET 30 Days from Date of Invoice. Invoice is generated at the time of Shipment. Comments: A copy of Tax Exemption Certificate is required with purchase order for all tax exempt customers. EXHIBIT 2 3M SELFCHECK EQUIPMENT ANNUAL MAINTENANCE AGREEMENTS FY 2015 -2018 ESTIMATE MEDIACHECK - SB MODEL MODEL TYPE SERIAL 366.00 AMOUNT US 50944 RENEWAL: 2/29/16 - 02/28/17 COMMAND CENTER ENTERPRISE 90100210 $ 1,599.00 COMMAND CENTER $ - MEDIACHECK - SB 1230 12300187 $ 1,599.00 366.00 SELFCHECK - SB 8421 84210275 $ US43898 RENEWAL: 10/01/15 - 09/30/16 MEDIACHECK -EF 1230 to purchase $ 366.00 MAIN SERVICE AGREEMENT SELFCHECK - EF 8421 $ $ 1,690.00 $ 30,614.00 SOFTWARE 3225 2,197.00 $ - 91200550 MEDIACHECK -EF 1230 12300186 $ 366.00 $ " SELFCHECK - EF 8421 84210276 $ 1,690.00 $ 30,614.00 SOFTWARE 3225 84210276 $ - SMARTCHUTE 877 87700372 $ 2,197.00 SMARTCHUTE 877 87700375 $ 2,197.00 RFID DETECTION SYS 9102DM 91200549 $ 1,473.00 $ " 9,979,00 MEDIACHECK - SB 1230 to purchase $ 366.00 SELFCHECK - SB 8421 to purchase $ 1,690.00 SOFTWARE 3225 $ - MEDIACHECK - SB 1230 12300187 $ 366.00 SELFCHECK - SB 8421 84210275 $ 1,690.00 SOFTWARE 3225 84210275 $ - SMARTCHUTE 877 87700373 $ 2,197.00 SMARTCHUTE 877 87700374 $ 2,197.00 RFID DETECTION SYS 9102BC 91200550 $ 1,473.00 MEDIACHECK - NB 1230 to purchase $ 366.00 SELFCHECK - NB 8422 to purchase $ 1,690.00 SOFTWARE 3225 $ - MEDIACHECK - NB 1230 1230188 $ 366.00 SELFCHECK - NB 8422 84221115 $ 1,690.00 SOFTWARE 3225 84221115 $ - SMARTCHUTE 877 87700371 $ 2,197.00 SMARTCHUTE 877 87700376 $ 2,197.00 RFID DETECTION SYS 9104DM 91400551 $ 2,150.00 $ " 10,656,00 $ 30,614.00 EXHIBIT 2 15 MONTH WARRANTY: US 53832 WARRANTY WARRANTY: 09/01/15 - 08/31/16 MEDIA CHECK - EF MEDIA UNLOCKERS $ 1,098.00 FIGURE TO RENEW MEDIA CHECK - SB MEDIA CHECK - NB SUMMARY: Prorated Current annual 1230 12300186 $ 355.00 FY 2015 -16 DUE OCT 1- US43898 MAIN /PRO $ 21,014.41 355.00 DUE FEB 28 - US50944 COMMAND $ 1,599.00 DUE SEP 1- US53832 1230'S $ 1,098.00 $ 23,711.41 FY 2016 -17 DUE OCT 1- US43898 MAIN $ 30,614.00 DUE FEB 28 - US50944 COMMAND $ 1,599.00 $ 32,213.00 X 5% increase $ 33,823.65 FY 2017 -18 DUE OCT 1- US43898 MAIN $ 30,614.00 DUE FEB 28 - US50944 COMMAND $ 1,599.00 $ 32,213.00 X 8% increase $ 34,790,04 ESTIMATED MAINTENANCE COST FOR THREE YEARS $ 92,325.10 Prorated Current annual 1230 12300186 $ 355.00 $ 366.00 1230 12300187 $ 355.00 $ 366.00 1230 12300188 $ 355.00 $ 366.00 Date: September 3, 2015 To: Elton Brock, Purchasing Manag , r L"'Iel CC: Bryan Langley, ACM From: Terri Gibbs, Director of Libraries -T?51- RE: Single -Sole Source Request - 3M Selfcheck/Unlocker purchase The Denton Public Library uses 3M products to manage circulation workflows such as check ins and check out functions, automatic return book drop chutes, security gates, self checks, unlockers and RFID tags in all materials. 3M equipment works exclusively within itself and does not integrate with other vendor hardware. Our current 3M products connect to a 3M Command Center Software which allows the library to keep track of circulating materials, number of persons entering the libraries, and also allows updates to software. Three self check/unlocker sets were purchased earlier this fiscal year. The purchase of three more self check/unlocker sets will complete a suite of 6 stations, two at each library location. While other vendors provide self check machines, none would work with our existing hardware /software configuration for materials management. With 40% of all checkout transactions coming from self check interactions, operability and reliability are of utmost importance to preserving prompt customer service. A new suite of 3M self checks with unlockers for AV materials will continue to provide the level of service library customers expect and library staff can be utilized for more intensive customer interactions. "Dedicated to Quality Service" www.cityofdenton.com • www.dentonlibrary.com ro rr RM EXHIBIT 4 3M Library Systems 3M Center, Building 0225- 04 -N -14 St. Paul, MN 55144 -1000 651 733 1110 August 11, 2015 Cindy Alonzo Buyer City of Denton, Purchasing 901 B Texas St. Denton, TX 76209 Dear Ms. Alonzo: 3M is the developer and sole manufacturer of the 3MTM SelfCheckTM System including the 3M QuickConnect Interface software. We have patents and patents pending protecting several portions of the system technology. These patents also include the 3MTM SelfCheckTM Systems connection to the 3M Command Center Software that is currently in use by the Denton Public Library. 3M is the sole authorized service provider for the 3M Library equipment located at Denton Public Library. There are no companies authorized to provide service other than 3M's authorized service provider. Our sales representative for your area is Shawn Brumley and he can be contacted at 800 - 328 -0067. Thank you for your interest in the 3M SelfCheck Systems. If there are any further questions or issues, please feel free to contact us. Sincerely, tIIIII IIII'',III'',i NA Belles aiid Aaidketlhig Ilya una2er l lbi -ary Systerns 7Ily eiiteu -, IC:kuliII liui2 225 ... 4 ....IIN...:1.4 . I St IC:��IaLfl, IlAIII 55144 . c: S. Brumley EXHIBIT 5 ORDINANCE NO. AN ORDINANCE APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF THREE (3) SELF CHECK MACHINES, THREE (3) DISC MEDIA UNLOCKERS, AND ASSOCIATED MAINTENANCE AND LICENSE COSTS FOR THREE (3) YEARS FOR THE CITY OF DENTON PUBLIC LIBRARY SYSTEM WHICH ARE 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 5916- AWARDED TO 3M LIBRARY SYSTEMS FOR SELF CHECK MACHINES AND DISC MEDIA UNLOCKERS IN THE AMOUNT OF $48,399.54 AND THREE (3) YEAR MAINTENANCE AND LICENSE COSTS IN THE ESTIMATED AMOUNT OF $92,325.10 FOR A TOTAL AWARD IN THE NOT -TO- EXCEED AMOUNT OF $140,724.64). 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 5916 3M Library Systems $140,724.64 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 5 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 5916 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 _ M BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -833, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple title to two 0.092 acre tracts, for the public use of expanding and improving Mayhill Road, a municipal street and roadway generally located in the Daniel Lambert Survey, Abstract No. 784, City of Denton, Denton County, Texas, at the Northeast corner of Mayhill Road and Colorado Boulevard, as more particularly described on the attached "Exhibit "A" (the "Property Interests "); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; making findings; providing a savings clause; and providing an effective date. (Mayhill Road Widening and Improvements project: Parcel M231 -Ray Hallford, Trustee) BACKGROUND Initial Offer issued by City June 11, 2015, followed by Final Offer letter dated August 7, 2015. The parcels to be acquired are 200' by 20' strips adjacent to the east and west boundaries of the existing platted right -of -way dedication of proposed S. Mayhill Road tying into Colorado Boulevard. Intended uses of the acquisitions are for present construction and future maintenance access to the contemplated bridge structure. Ongoing negotiations with the affected property owner for the subject land rights necessary for the Mayhill Road Widening and Improvements have not been fruitful to date. Approval of the subject ordinance authorizes staff to acquire the land rights necessary by way of the exercise of the City's eminent domain authority. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. FISCAL INFORMATION The overall Mayhill Road Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -833, Version: 1 City of Denton local match funds. The overall costs for the Property Interests sought, as to be determined via eminent domain proceedings, are to be funded through a combination of these funding sources. EXHIBITS Exhibit 1- Location Map Exhibit 2- Site Map Exhibit 3- Ordinance Respectfully submitted: Frank G. Payne, P.E. City Engineer Prepared by: LuAnne Oldham Real Estate Specialist City of Denton Page 2 of 2 Printed on 9/10/2015 Wr ..as m iMharm MMU v ]SEES Boiling - � .-I . • - s • �� , � � . 11111 �,,,,, 1 _ ° ��� �, m = ,1.-11111111 - MI INS m I EWE) 1111 , \ 111111 � ° hr�-_ 0 OR HIM Haliford Tracts ••• 450 • ••• 1,8•• 2,7•• Feet DENTON Exhibit 1 to the CC AIS Site Map Parcel M231 W Approximately 0.09 Acres Parcel M231 E Approximately 0.09 Acres N Hallford Tracts or 60 30 0 60 120 180 S Feet DENT �N Exhibit 2 to the CC AIS 4dea4 & t 5 A 4.np V 4: ndnpt ORDINANCE NO. AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE FEE SIMPLE TITLE TO TWO 0.092 ACRE TRACTS, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING MAYHILL ROAD, A MUNICIPAL STREET AND ROADWAY GENERALLY LOCATED IN THE DANIEL LAMBERT SURVEY, ABSTRACT NO. 784, CITY OF DENTON, DENTON COUNTY, TEXAS, AT THE NORTHEAST CORNER OF MAYHILL ROAD AND COLORADO BOULEVARD, AS MORE PARTICULARLY DESCRIBED ON THE ATTACHED "EXHIBIT "A" (THE "PROPERTY INTERESTS "); AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY INTERESTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; MAKING FINDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "City ") has initiated the widening and expansion of Mayhill Road affecting, among other lands and interests, the Property Interests; WHEREAS, the widening and expansion of Mayhill Road constitutes a valid public use of the City and its citizens; WHEREAS, the City made a written Initial Offer (herein so called) to Ray Hallford, Trustee, the owner of the Property Interests ( "Owner ") on June 11, 2015; WHEREAS, at the time the City made the Initial Offer, by certified mail, return receipt requested, to the Owner of the Property Interests, the City also provided all appraisal reports produced or acquired by the City relating specifically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer; WHEREAS, the Initial Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) keep the offer or agreement confidential, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Confidential Notice "); WHEREAS, the City made a written Final Offer, by certified mail, return receipt requested, to the Owner of the Property Interests on or before August 7, 2015, which was more than thirty (30) days after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Property Interests and the damages, if any, to any of the Owner's remaining property; WHEREAS, the Final Offer made to the Owner of the Property Interests was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Final Offer made to the Owner of the Property Interests included (i) a copy of the written appraisal; and (ii) copy of the (a) Special Warranty Deed; being the instruments proposed to convey the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, as required by Subchapter C, Chapter 551, of the Texas Government Code, in addition to other information, as required by that subchapter, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire fee simple to two 0.092 acre tracts, for the public use of expanding and improving Mayhill Road, a municipal street and roadway generally located in the Daniel Lambert Survey, Abstract No. 784, City of Denton, Denton County, Texas, at the northeast corner of Mayhill Road and Colorado Boulevard, the affected tracts located, and more particularly described on "Exhibit "A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use of expanding and improving Mayhill Road, a municipal street and roadway in the City of Denton, Texas "; and WHEREAS, after due consideration of the public interests to be furthered by the public use of expanding and improving Mayhill Road, a municipal street and roadway; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists to widen and expand Mayhill Road to serve the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property Interest, and the City of Denton, Texas does hereby exercise its home -rule and statutory authority to acquire by eminent domain, fee simple to two 0.092 acre tracts, for the public use of expanding and improving Mayhill Road, a municipal street and roadway; generally located in the Daniel Lambert Survey, Abstract No. 784, City of Denton, Denton County, Texas, at the northeast corner of Mayhill Road and Colorado Boulevard and more particularly described on the attached "Exhibit "A" (Property Interests). The Council hereby further finds and determines that the acquisition of the Property Interest is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The Council hereby authorizes and directs the filing and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interests. SECTION 3. The City Council hereby finds that the Owner was the record title owner of said Property Interest at the time of making the Initial Offer and Final Offer. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests. SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interests by eminent domain, including without limitation, the authority to expend funds related to the prosecution of such eminent domain proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY li APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: Exhibit A to Ordinance - "Property Interests" i 0.092 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the Daniel Lambent Survey, Abstract Number 784, and being part of Lot 1,R, Block A of Lornbard Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded Linder Instrument Number 201.1-92, Plat 13 ecords of Denton County, 'Texas, and being more particularly described as follows: BEGINNING at 1122 inch. iron rod with yellow cap stamped "ARTflUR SURVEYING COMPANY" (ASC) set for comer being the southwest corner of said Lot I R, same point being in the existinZ, g north right-of-way line of Mayhill 1� Road; THENCE North 00 degrees 28 minutes 51 seconds East, with the west lien of said Lot I R, a distance of 199.99 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner being in the west line of said Lot I R- I I THENCE South 89 degrees 31 minutes 09 seconds East, over and across said Lot IR, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 00 degrees 28 minutes 51 seconds West, over and across said Lot I R, a distance of 200.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC' set for corner being in the existing north right-of-way line of Mayhill Road; THENCE North 89 degrees 27 ininutes 46 seconds West, with the existing north right-of-way line of Mayhill Road, a distance of 20.00 feet to the POINT OF BEGINNING and containing 0,092 acre of land, more or less. C110713t-65 Parcel M23 I E Remainder of Lot 1, Block 13 Lombard Addition Cabinet 1, Page 182 Exhibit A to Ordinance - "Property Interests" "� ' 1 e=nd. I Lot 1R —RI, Block I I Denton Regional Medical Center Addition Cabinet Y, Page 69 NOTES: * LRY. = 1/2" Tron Rod Found * L,M� = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" * All improvements not shown hereon. 1,P,.an 0.092 Acre Parcel M231FK (4,000 sq. ft.) to 20.00" I L2 I' N89 ) 00 Lot 3, Block 3 Denton Regional Medical W Center Addition, Please 2 Cabinet Q, Page 3 05 Co Exhibit A to Ordinance - "Property Interests" "� ' 1 e=nd. I Lot 1R —RI, Block I I Denton Regional Medical Center Addition Cabinet Y, Page 69 NOTES: * LRY. = 1/2" Tron Rod Found * L,M� = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" * All improvements not shown hereon. 1,P,.an 0.092 Acre Parcel M231FK (4,000 sq. ft.) 1217.43° :1 — �0F-D (1 MIMI= too 0 5o 100 SCALE: F'= 100' Bearin.-s shoie,n hemon based on the City of Denton GIS Netwoi-K,. Lot IR, Block A Lombard Addition Instr. No. 2011-92 Slope Easement (per Plat & Vol. 5272, Pg. 1250) I Lt I S89'31'09"E 20.00" I L2 I' N89 ) 00 Co N89731'53 .W 50, 00' 1217.43° :1 — �0F-D (1 MIMI= too 0 5o 100 SCALE: F'= 100' Bearin.-s shoie,n hemon based on the City of Denton GIS Netwoi-K,. Lot IR, Block A Lombard Addition Instr. No. 2011-92 Slope Easement (per Plat & Vol. 5272, Pg. 1250) I Lt I S89'31'09"E 20.00" I L2 I' N89 ) 00 s L. ARTHUR 4357 'W11-11M*1 URVEYORS CERTWICATION: `gned does hereby certify to Title Resources (Ci, F. No 102635) that this survey wi, this day made on the ground of the propc ly legally described her en and is correct, and to the best ofirry Icnowledge, there are no visible discrepancies, conflicts, shortages, in area, boundary line conflicts, encroachments, overlapping of improvements, easements or rights of way that f have been advised of except as shown hereon, fthur Surveying, Co Professional Land Surveyors 220 Ehn St., # 200 - Lewisville, TX 75057 Phi 972.221.9439 - TFRNA 10063800 mthursurveying.com Established 1986 EXHIBIT 66A99 MAYHILL ROAD RIGHT-OF-WAY PARCEL M2 31W 0.092 Acre City of Denton, Denton County, Texas BE ING all that certain lot, tract or parcel of land. situated in the Daniel Lambert Survey, Abstract Number 784, and being part of Lot 1, Block B of Lombard Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded iii Cabinet 1, Page 182, Plat Records, Denton County, Texas, and being more particularly described as -follows: COMMENCING at a 1/2 inch iron. rod found for comer being the most easterly southeast comer of Lot 3, Block 3 of Denton Regional Medical Center Addition, Phase 2, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet Q, Page 305, Plat Records of Denton County, Texas, same point being in the northwest corner of a Right-of-Way Acquisition Tract, recorded under County Clerk's File Number 96- 44832, Official Public Records, Denton County., Texas; THENCE South 89 degrees 31 minutes 53 seconds East, with the north line of said Acquisition tract, a distance of 30.00 feet to a point for corner being the POINT OF BEGINNING-, THENCE North 00 degrees 28 minutes 51 seconds East, over and across said Lot 1, a distance of 200.00 feet to a, point for comer; THENCE South 89 degrees 31 minutes 09 seconds East, over and across said Lot 1, a distance of 20.00 feet to a point for comer being in the east line of said Lot I and the west line of a 120 foot right-of-way dedication as shown on said. Lornbard Addition; THENCE South 00 degrees 28 minutes 51 seconds West, with the east line of said Lot 1, a distance of 200.00 feet to a 1/21 inch iron rod with yellow cap stamped "Arthur Surveying, Company" set foi- comer being the southeast comer of said Lot 1; THENCE North 89 degrees 31, minutes 53 seconds West, with the north line of said Acquisition tract, a distance of 1 20.00 -feet to the POINT OF BEGINNING and containing 0.092 acre of land, more or less. Z�l 01107131-65 Parcel M2331 W" Exhibit A to Ordinance - "Property Interests" 11 20' Gas Easernan t Instr. No. 2005-153191 720' Right —of- -Way I bedicotio Cob. 1, :Pg. 182 9L6r plat 100 0 50 100 SCALE: I"= 100' Bearings shown hereon based on the City of Denton GIS Network, Lot 1R—R1, Block 1 Denton Regional Medical Center Addition Cabinet Y, Page 69 Fnd. NOTES: • T.R.F, = 1/2" Tron Rod Found • LR.S. = 1/2" Iron Rod Set with yellow cap staniped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 1903, P& 326, & Vol. 2059, Pg. 632 do not affect subject tract. Right—of Way Acquisition CC#96-44832 F- - - - - - - - � - -t I \\ I Lot 2R, Block A 80' Right—of Way Lombard Addition Dedication Instr. No. 2011-92 Vol. 5272, Pg. 1245 I L,1 I S89-3 I'09"E 20.00' Parcel M231W Lot 3, Block 3 Denton Regional Medical u, P (4,000 ft.) Center Addition, Phase 2 C6 I sq. Cabinet Q, Page 305 I CD Point Of cc Be Vnlilig ing cc 0 Lot IR, Block A _ 0 Lombard Addition Instr. No. 2011-92 Lot 1R—R1, Block 1 Denton Regional Medical Center Addition Cabinet Y, Page 69 Fnd. NOTES: • T.R.F, = 1/2" Tron Rod Found • LR.S. = 1/2" Iron Rod Set with yellow cap staniped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 1903, P& 326, & Vol. 2059, Pg. 632 do not affect subject tract. Right—of Way Acquisition CC#96-44832 F- - - - - - - - � - -t I \\ I Lot 2R, Block A 80' Right—of Way Lombard Addition Dedication Instr. No. 2011-92 Vol. 5272, Pg. 1245 I L,1 I S89-3 I'09"E 20.00' I,2 M9 City of Denton Denton County, Texas --2015-- SURVEYORS CEWFIFICATION: The undersigncd does hereby certify to Title Resources lV, No. 102636) that this sLzrvey was this clay trade on 1he ground of the property legally described hercon and is correct, mid to the best ofimy 1unowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachreenis, overlapping of itriprovernents, easentents or rights of way that I have been advised of except as shown Tree con. Ul V %.ly 1116 ve Professional Land Surveyors 220 Elm, St., # 200 - Lewisville, TX 75057 P& 972.221.9439 - T.FRN# 10063800 arthu.rsurveying.com Established 1986 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -835, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple title to a 1.509 acre tract generally located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas, at the Southeast corner of E. McKinney St. and S. Mayhill Road, and more particularly described on the attached "Exhibit "A" (the "Property Interests "), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; making findings; providing a savings clause; and providing an effective date. ( Mayhill Road Widening and Improvements project: Parcel M088 -BCI Real Estate Ventures, LP) BACKGROUND An Offer to Purchase the land rights necessary for the road widening project was made to the affected property owner in June of 2015. A Final Offer to Purchase was made in early August 2015. Prior to the latest offer(s) to purchase, there has been ongoing discourse with the affected property owner. A main topic of discussion involved a prior offer to purchase in which the appraisal for that offer considered a larger, "master" parent tract. That master parent tract (then 39.764 acres) was subdivided between the time the first appraisal was prepared and the time the first offer to purchase was made to the property owner. Upon review of this discovery, an update to the appraisal was arranged to consider the facts at hand, a now 8.71 acre gross remainder tract being affected by the subject land rights purchase request. Staff continues to negotiate with the owner in hopes of reaching settlement to the matter, but finds it necessary to advance the statutory acquisition process for the sake of the project construction schedule, should negotiations reach an outright impasse. Approval of the subject ordinance authorizes staff to acquire the land rights necessary by way of the exercise of the City's eminent domain authority. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -835, Version: 1 FISCAL INFORMATION The overall Mayhill Road Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds. The overall costs for the Property Interests sought, as to be determined via eminent domain proceedings, are to be funded through a combination of these funding sources. EXHIBITS Exhibit 1- Location Map Exhibit 2- Site Map Exhibit 3- Ordinance Respectfully submitted: Frank G. Payne, P.E. City Engineer Prepared by: LuAnne Oldham Real Estate Specialist City of Denton Page 2 of 2 Printed on 9/10/2015 Site Map Parcel M088 Approximately 1.5 Acres N BCI Real Estate Ventures, LP Tract 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 ORDINANCE NO. AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE FEE SIMPLE TITLE TO A 1.509 ACRE TRACT GENERALLY LOCATED IN THE MORREAU FORREST SURVEY, ABSTRACT NO. 417, CITY OF DENTON, DENTON COUNTY, TEXAS, AT THE SOUTHEAST CORNER OF E. MCKINNEY ST. AND S. MAYHILL ROAD, AND MORE PARTICULARLY DESCRIBED ON THE ATTACHED "EXHIBIT "A" (THE "PROPERTY INTERESTS "), FOR THE PUBLIC USE OF EXPANDING AND IMPROVING MAYHILL ROAD, A MUNICIPAL STREET AND ROADWAY; AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY INTERESTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; MAKING FINDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas ( "City ") has initiated the widening and expansion of Mayhill Road affecting, among other lands and interests, the Property Interests; WHEREAS, the widening and expansion of Mayhill Road constitutes a valid public use of the City and its citizens; WHEREAS, the City made a written Initial Offer to the owner of the Property Interests, BCI Real Estate Ventures, L.P., a Texas limited partnership, ( "Owner "), on June 15, 2015; WHEREAS, at the time the City made the Initial Offer, by certified mail, return receipt requested, to the Owner of the Property Interests, the City also provided all appraisal reports produced or acquired by the City relating specifically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer; WHEREAS, the Initial Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) keep the offer or agreement confidential, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Confidential Notice "); WHEREAS, the City made a written Final Offer, by certified mail, return receipt requested, to the Owner of the Property Interests on or before August 7, 2015, which was more than thirty (30) days after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Property Interests and the damages, if any, to any of the Owner's remaining property; WHEREAS, the Final Offer made to the Owner of the Property Interests was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Final Offer made to the Owner of the Property Interests included (i) a copy of the written appraisal; and (ii) copy of the (a) Special Warranty Deed; being the instruments proposed to convey the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, as required by Subchapter C, Chapter 551, of the Texas Government Code, in addition to other information, as required by that subchapter, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire (i) fee simple title to a 1.509 acre tract, for the public use of expanding and improving Mayhill Road, a municipal street and roadway, generally located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas, at the southeast corner of E. McKinney Street and S. Mayhill Road, and more particularly described on "Exhibit "A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use of expanding and improving Mayhill Road, a municipal street and roadway in the City of Denton, Texas "; and WHEREAS, after due consideration of the public interests to be furthered by the public use of expanding and improving Mayhill Road, a municipal street and roadway; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists to widen and expand Mayhill Road to serve the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property Interest, and the City of Denton, Texas does hereby exercise its home -rule and statutory authority to acquire by eminent domain, fee simple to a 1.509 acre tract, for the public use of expanding and improving Mayhill Road, a municipal street and roadway, generally located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas, at the southeast corner of E. McKinney Street and S. Mayhill Road, and more particularly described on the attached "Exhibit "A" (Property Interest). The Council hereby further finds and determines that the acquisition of the Property Interest is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The Council authorizes and directs the filing and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interest. SECTION 3. The City Council finds that the Owner was the record title owner of said Property Interest at the time of making the Initial Offer and Final Offer. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests. SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interest by eminent domain, including without limitation, the authority to expend funds related to the prosecution of such eminent domain proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: BEING all that certain lot, tract or parcel of land situated in the Moreau Forrest Survey, Abstract Number 417, City of Denton, Denton County, Texas, and being, part of that certain tract of land described by deed to BCI Real Estate Ventures, L.P., recorded. under instrument Number 2005-91580, Official Public Records, Denton County, Texas, and being more particularly described as follows; )BEGINNING at a "PK" Nail set for the northwest comer of said BCI tract in the south ri-ht-of-way line of FM 426, same point being in Mayhill Road; Z� THENCE South 75 degrees 23 minutes 18 seconds East, with the north line of said BCI tract and the south right-of- way line of FM 426, a distance of 161,85 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for comer; THE, NCE South 54 degrees 36 minutes 56 seconds West, over and across said BCI tract, a distance of 35.68 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non-tangent curve to the right, having Z7 a radius of 2079.00 feet; THENCE over and across said BC1 tract, with said curve to the right, throng i a central angle of 00 degrees 52 "I j 11.1� minutes 40 seconds, whose chord bears South 04 degrees 10 minutes 49 seconds West at 31.86 feet, an arc length of 31.,86 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 04 degrees 37 minutes 09 seconds West, over and across said BCI tract, a distance of 231.65 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 269.00 feet; THENCE over and across said BC1 tract, with said curve to the right, through a central angle of 12 degrees 34 minutes 41 seconds, whose chord bears South 10 degrees 54 minutes 30 seconds West at 58.93 feet, an arc length of 59.05 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a reverse curve to the left, having a radius of 231.00 feet; THENCE over and across said BCl tract, with. said curve to the left, through a central angle of 12 degrees 34 minutes 41 seconds, whose chord bears South 10 degrees 54 minutes 41 seconds West at 50.61 feet, an arc length of 50.71 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 04 degrees 37 minutes 09 seconds West, over and across said BCI tract, a distance of 141.25 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer in the south line of said BC1 tract and the north ,line of a tract of land described by deed to the City of Denton, recorded under County Clerk's File Number 97- 1.9639, Real Property Records, Denton County, Texas; (continued) 01107131-47 Parcel M088 Exhibit A to Ordinance - "Property Interests" THENCE North 88 degrees 15 ininutes 47 seconds West, with the south line of said BCl tract and the north line of said City of Denton tract, a distance of 99.98 feet to a "PK" Nail set in Mayhill Road for the southwest comer of said BCl tract and the northwest corner of said City of Denton tract; THENCE North 02 degrees 33 ininutes 47 seconds East, with the west line of said BCl tract and with Mayhill Road, a distance of 570.05 feet to the POINT OF BEGINNING and containing 1.509 acres of land, of which 0.659 acre lie within existing Mayhill Road, 01107131-47 Parcel M088 Exhibit A to Ord inanpli" Property Interests" "PK" Nail 4,26 Set 82s02 31 aliabj .1 100 0 50 100 6-1—i SCALE I"= 100' Bearings shown hereon based an the City of Denton GIS Network. NOTES: • I.R.F. = 1/2" Iron Rod Found • I.R.S. =1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Blanket Easements recorded in Vol. 199, Pg. 612, Vol. 410, Pg, 169, Vol. 460, Pg. 89, Vol. 475, Pg. 691., Vol. 544, P& 660 &Vol. 545, Pg. 31 include this tract. • Easements recorded in Vol. 472, Pg. 263 Vol. 485, P- 224, Vol. 695, Pg. 35, Vol. 909, Pg. 381, Vol. 914, Pg. 522, Vol. 1128, Pgs. 982 & 988, Vol. 1438, Pg. 676 & Vol. 2896, Pg. 158 do not affect subject tract to the best of my knowledge. loll q I 1 I 14- p > r17 I I I t EXHIBI I B Mayhill Road Project Parcel M088 1.509 Acres Moreau Forrest Survey -4,bstract Number 417 City • Denton Denton County, Texas (C.M.) 911 -4 p 1. R. S. I i C2 J.R.S. C3 ECI Real Estate Ventures, LP T=tr. No. 2005-91580 (remainder) New Right-of-way 0.850 ac. (37,014 sq. ft.) Existinglinplied Dedication 0.659 ac. (28,718 sq. ft.) 1.509 Acres (65,732 sq. ft.) Right-of-Way Parcel M088 City of Denton `1 C.C-#97-19639 CURVE TABLE 1� Anave been ao'7'e', "rMXP"1' shown nerean. rthur Surveying Co., Inc. pmfes "Urveyors P.O.Box 54 - Lewisville, Texas 75067 11fice: (972) 221-9439 Fax: (972) 221-4675 Established 196 ---- - ------- =W.- M-51TIZIM, ff =1171 =I Anave been ao'7'e', "rMXP"1' shown nerean. rthur Surveying Co., Inc. pmfes "Urveyors P.O.Box 54 - Lewisville, Texas 75067 11fice: (972) 221-9439 Fax: (972) 221-4675 Established 196 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -738, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider nominations /appointments to the Economic Development Partnership Board. BACKGROUND The City Council appointed a Nominating Committee at the August 18, 2015, meeting charged with recommending nominees for Economic Development Partnership Board membership. Nominating committee members are Mayor Pro Tem Dalton Gregory, Councilmember Kevin Roden, and Denton Chamber of Commerce Member Virgil Strange. Economic Development Partnership Board (EDPB) members serve two -year terms and may serve as many as three terms. The ordinance creating the Board provides that EDPB members must fall into specific categories when they are originally appointed to the Board (categories shown in table 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. 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) John Gilmer Top 20 Taxpayer 2016 President University of North Texas Cleve Breedlove Aviation 2015 (eligible) Carrell Ann Simmons lAt Large 12016 Virgil Strange has now served three two -year terms and is not eligible for reappointment this year. Greg City of Denton Page 1 of 2 Printed on 9/10/2015 File M ID 15 -738, Version: 1 Johnson, Jim Fykes, and Cleve Breedlove's terms will expire, but all are eligible for reappointment. Ordinance No. 2015 -074 Sec. 2 -251 C states "Notwithstanding anything contained herein to the contrary, the membership make -up of the Board shall consist of the following" and Sec. 2 -251 C (7) provides for the addition of two new members to be appointed to serve effective in 2015, stating: "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." This addition brings the EDP Board membership to eleven total. The Nominating Committee met on Sept. 8, 2015, and presents the following nominees to the City Council. The committee nominates: • Larry Parker, Chamber of Commerce Greg Johnson, City Council Cleve Breedlove, Aviation Jim Fykes, Top 20 Taxpayer John Baines, Denton Black Chamber of Commerce Since there was no nomination from the Denton Hispanic Chamber of Commerce, the Nominating Committee may reconvene pursuant to Council direction to determine a nominee to fill the seat. EXHIBITS Exhibit 1 - EDP Board Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Caroline Booth Assistant Director for Economic Development City of Denton Page 2 of 2 Printed on 9/10/2015 sAegahour documents \ordinances \15 \edp ordinance option l.docx Exhibit 1 - EDP Board Ordinance 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 - EDP Board Ordinance 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 - EDP Board Ordinance 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 Dlaectaaas 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 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -880, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: September 15, 2015 SUBJECT Consider nominations /appointments to the City's Boards and Commissions: Parks, Recreation and Beautification Board. BACKGROUND Parks, Recreation and Beautification Board - Janet Shelton has served three terms. This is a nomination for Mayor Watts. A nomination could be made and voted on at this meeting should the Council desire. Approval would be contingent on completion of the confirmation process. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -793, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Community Improvement Services CM/ ACM: John Cabrales Date: September 15, 2015 SUBJECT Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to submit an application and all other necessary documents to obtain a grant under the Texas Department of Housing and Community Affairs' Amy Young Barrier Removal Program, and take all other actions necessary to implement the program; and providing for an effective date. BACKGROUND The Texas Department of Housing and Community Affairs' (TDHCA) Housing Trust Fund has released the Notice of Funding Availability (NOFA) for the Amy Young Barrier Removal Program Reservation System Access which provides one -time grants of up to $20,000 to low - income (80% AMI) persons with disabilities for home modifications necessary for accessibility and the elimination of hazardous conditions. Two residents have been assisted during the current program year, bringing total funding to $44,000. Staff hopes to assist another four to eight households during the 2015 -16 grant cycle. The Texas Department of Housing and Community Affairs requires the appropriate certifications and evidence that the City Council has determined that it is in the public interest to authorize the City Manager to execute a grant agreement. OPTIONS Option l: City Council may adopt the resolution authorizing the City Manager to submit an application for the Amy Young Barrier Removal Program. Option 2: City Council may choose not to adopt the resolution. RECOMMENDATION Staff recommends approval of the resolution authorizing submission of the City's application for funding under the reservation system of the Amy Young Barrier Removal Program Fund. ESTIMATED SCHEDULE OF PROJECT The program will be in effect for owner - occupied rehabilitation and reconstruction projects completed from October 1, 2015 through September 30, 2016. FISCAL INFORMATION City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -793, Version: 1 Housing staff salaries related to program delivery will be paid with CDBG and HOME funds. No general fund dollars are included to manage this program. EXHIBITS Exhibit 1 - Proposed Resolution Respectfully submitted: Lancine Bentley Community Improvement Services Manager Prepared by: Barbara Ross Community Development Administrator City of Denton Page 2 of 2 Printed on 9/10/2015 SALegahOur Documents\Resolutions11 4\Amy Young Barrier Removal Program,doc RESOLUTION NO. A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SUBMIT AN APPLICATION AND ALL OTHER NECESSARY DOCUMENTS TO OBTAIN A GRANT UNDER THE TEXAS DEPARTMENT OF HOUSING AND COMMUNTY AFFAIRS, AMY YOUNG BARRIER REMOVAL PROGRAM AND TAKE ALL OTHER ACTIONS NECESSARY TO IMPLEMENT THE PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, is concerned with the development of viable urban communities, including decent housing, a suitable living environment and expanded economic opportunities; and WHEREAS, the City of Denton, Texas, has a special concern for persons of low and moderate income; and WHEREAS, the City of Denton, Texas, wishes to apply for a grant through the Texas Department of Housing and Community Affairs, housing trust fund, Amy Young Barrier Removal Program Reservation System Access, which provides one-time grants of up to $20,000 to low-income (80% AMI) persons with disabilities, for home modifications necessary for accessibility and the elimination of hazardous conditions; and WHEREAS, I the Texas Department of Housing and Community Affairs requires the appropriate certifications and the City Council deems it in the public interest to authorize the City Manager to execute a grant agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES, SECTION 1. The City Council of the City of Denton, Texas, authorizes that an Amy Young Barrier Removal Program application through the Housing Trust Funds is hereby authorized to be filed on behalf of the City with the Texas Department of Housing and Community Affairs. SECTION 2. The City's application be submitted in consideration for funding under the reservation system of the Amy Young Barrier Removal Program Fund. SECTION 3. The City directs and designates City Manager, George C. Campbell, to take all other actions necessary to execute an agreement and administer the Amy Young Barrier Removal Program and receive grant funding through reimbursements. SECTION 4. The City Council of the City of Denton, Texas, authorizes the Community Development Administrator, Barbara L. Ross, to sign and submit to the Texas Department of Housing and Community Affairs and all appropriate officials thereof, amendments, change orders, together with all necessary certifications, and other documents, under the supervision of the City Manager, to handle all fiscal and administrative matters relating to the administration of the Amy Young Barrier Removal Program, if it is funded and all other matters connected therewith. SECTION 5. The City Secretary is hereby authorized to furnish true, complete, and correct copies of this ordinance to all interested parties. SECTION 6. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2014. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IM BY: -<,/ City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -879, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services Department, Economic Development ACM: Jon Fortune Date: September 15, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving an Economic Development Agreement for an incentive grant between the City of Denton and Rail Yard Partners, LTD; and a Commercial Lease Agreement between the City of Denton and Rail Yard Partners, LTD. involving development at the property located at 608 East Hickory Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreements subject to final language approval by the City Attorney; and providing an effective date. BACKGROUND The City is engaged in the process of developing new recruitment strategies and programs. One of those initiatives is focused on the recruitment of hi -tech and emerging technology companies, and the support of entrepreneurship and innovation. This program initiative, funded for the 2014 -15 Fiscal Year, seeks to: • To create knowledge- based, high - paying jobs • To gainfully employ our college graduates in order to keep them living and working in Denton • To support entrepreneurship and innovation • To recruit, create and retain successful innovative businesses • To diversify and strengthen our tax base • To increase the average household income in Denton • To encourage infill development and redevelopment • To create substantial investment in Denton businesses • To develop a workforce that is agile, technologically advanced, and employable • To foster technology solutions to address community -wide needs The proposed Rail Yard downtown catalyst project addresses a number of goals of the Technology and Innovation Program and is located in the Downtown Implementation Plan (DTIP) and Transit Oriented Development (TOD) area. The project would be located at 608 E. Hickory adjacent to the transit station. The project involves a Commercial Lease Agreement with the Developer (Rail Yard Partners, LTD) and a separate Agreement with the Dallas Entrepreneur Center (will be considered by the City Council at a future date). The parties and roles are planned as follows: • Rail Yard Partners, LTD: is the Landlord City of Denton: is the Tenant City of Denton Page 1 of 3 Printed on 9/10/2015 File #: ID 15 -879, Version: 1 Dallas Entrepreneur Center (DEC): is a 501(c)3 organization and will be the Subtenant and /or Program Manager Rail Yard Partners, LTD. is renovating an existing 28,000 square foot building as a part of a larger transit - oriented catalyst project. The City would lease 9,216 square feet for a collaborative working space. The DEC, which has similar entrepreneur resource centers in Addison and North Dallas, would offer memberships, technical assistance, mentorship and program events to help foster local business growth in Denton. PRIOR ACTION/REVIEW On January 16, 2015 the Tax Increment Reinvestment Zone Number One (Downtown TIF) received a report regarding an innovation and technology recruitment initiative and potential partnership opportunities, and recommended approval of an incentive 5 -0. On October 14, 2014 the EDP received a report regarding an innovation and technology recruitment initiative and potential partnership opportunities and recommended that staff proceed with a vote by the Downtown TIF Board. In a Budget Workshop on July 31, 2014, and in a Budget Work Session on August 19, 2014, the City Council heard a budget request for $220,000 for the formation of this program. This program has been funded for the 2014 -15 Fiscal Year and is included in the City Manager's Proposed Budget for Fiscal Year 2015 -16. In a joint meeting between EDP and the City Council on April 7, 2014, program components were presented and discussed. EDP and the City Council gave staff direction to consider pursuing the initiative and developing the program. FISCAL INFORMATION The Program Grant Agreement contemplates an annual grant in the amount of $76,000 for five years from the Downtown Tax Increment Reinvestment Zone Fund, for a total incentive of $380,000. The Commercial Lease Agreement is a five year lease at $9.75 per foot for year one, with an approximate 3.5% increase in the per foot cost annually thereafter, in addition to operating expenses including the City's pro rata share of real estate taxes, insurance, common area maintenance, and operating expenses. Estimated Annual total costs: Program Grant Agreement: $76,000 (TIRZ Funding) Lease Agreement, including operating expenses: $131,360 (Operating Budget) EXHIBITS 1 - Project Rendering and Space Layout 2 - Downtown TIF Project Plan 3 - Downtown TIF Board Meeting Minutes 01 -16 -15 4 - EDP Board Meeting Minutes 10 -14 -15 5 - Draft Lease Agreement 6 - Exhibit B of Lease Agreement (Site Plan) 7 - Draft Incentive Agreement 8 - Draft Ordinance City of Denton Page 2 of 3 Printed on 9/10/2015 File M ID 15 -879, Version: 1 Respectfully submitted: Aimee Bissett Director of Development Services City of Denton Page 3 of 3 Printed on 9/10/2015 : � .� �� j � � � \ ��«° : < �� 2\ � �; � � � / � � \ \/� � .. � / r < �� ~ , } \Z \� � . . . y \� y � i �� § £: \: \.< . : � . \� \ �� � � : �����? \� � \ � �� " � � � /\ � � � � � \ 6 :.:r. . _�� : ?<� > . < � \� < ... - »� } � » :� }� \ »/ \� < � � :�� ��� � . ^� / \ « \ \\ ©� \ r: N EiA �»r �w JIUff�!(G�kb(f�CrG6 ✓ll((�`I/ �� IIY�llu���'VH��1 91, 1 f VigyF� ' RY1lJl�I d l� Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 FINAL PROJECT PLAN Updated June 2014 Tax Increment Financing Reinvestment Zone No. 1 City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972 - 661 -1973 schcli(aswbell.net Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 Iff-71-MITTIMM The City of Denton, Texas proposes to establish a Tax Increment Financing Reinvestment Zone ( "TIF ") for the purpose of dedicating the increase in tax revenue generated within the TIF to provide funds for public infrastructure to encourage accelerated development and redevelopment in the downtown area of the City. The TIF consists of approximately 225.73 acres and is more fully described in Project Plan Exhibit A. The City is creating this TIF to encourage accelerated development and redevelopment in this area of the City in an effort to stimulate new higher value, higher density development which would benefit and be incentivized from the proposed public infrastructure improvements. It is expected that the TIF will exist for thirty (30) years or the date when all project costs are paid, whichever comes first. As set forth in Section 311.011 of the Tax Increment Financing Act of the Texas Tax Code Ann., the Project Plan for Tax Increment Financing Reinvestment Zone No. 1, Denton, Texas must and does include the following elements: 1. A map showing existing uses and conditions of real property in the TIF and a map showing proposed improvements to and proposed use of the property. ■ The boundaries of the TIF are shown on the map labeled Project Plan Exhibit: B; ■ Project Plan Exhibit: C shows existing land use within the TIF. Currently, the area is generally developed but contains less than ten percent residential. ■ Project Plan Exhibit: D lists and defines the public improvements being proposed for the TIF; ■ Project Plan Exhibit: E shows anticipated Future Land Use within the TIF. 1 Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. ■ Any changes to codes, ordinances, or master plan as a result of the creation of the TIF will be made through the standard process and procedures of the City. 3. A list of estimated non - project costs. ■ Non - project costs within the TIF are those development costs not paid for by the TIF. These costs will include, but are not limited to, $207.5 million, which is comprised of new private development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. ■ Although not anticipated, in the process of developing the TIF, any relocation will be made through the standard process and procedures of the City. 2 Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT A Boundary Description Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot l; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, Al 184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, Al 184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, Al 184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, Al 184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; 3 Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY Boundary Description THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. M Exhibit 2 PROJECT PLAN — DENTON TIF NO. I PRELIMINARY TIF Boundary EXHIBIT B 1 �. ,. - Centerline Streets perty Description Acreage w/or wio Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome Vacant Commercial Lots 11 WEMLOUX, This map Is a graphlc representation prepared by the City of Denton and Is Intended for use only as a reference, Data depicted 0 0 05 0 1 02 0 3 04 Is not guaranteed for accuracy and may be sulblect to revision at any time without notification, A Registered Surveyor for the State of Texas was net consulted. For Survey level accuracy, supervishon and certification of the produced data by a Registered Profe"Ifonal Land Surveyor for the State of Texas would need to be performed 5 Exhibit 2 PROJECT PLAN — DENTON TIF NO. I PRELIMINARY Existing Land Use EXHIBIT C Legend TIF Boundary I Centedine Streets perty Description Acreage w/or w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome Vacant Commercial Lots oir April 16 2010 Wes Thta map Ila graphle representation prepared by the City 0 Dentonand aintended for use only as a reference, 0ma do lActed Is not guaranteed f accuracy and may be subIect to reviislon at any lIme vAthout notificarlon. A Froquaeffed Surveyor for the 0 006 01 02 03 Ci 4 State of Texas wal"l consulted, Far Survoy evel accuracy, %LoomhAonl and corlIftation of the produoad data by a Registered Prolessional Land surveyor for the Stale of Texas would need to be lawforeted I !, Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT D Project Plan PROJECT ESTIMATED COST, $M Parking / Transportation 8.0 Complete Streets 7.9 Support for Downtown Projects 4.9 Utility / Drainage Improvements 4.0 TOTAL 24.8 Project Definitions Parking/Transportation: Transportation: Parking includes, but is not limited to, parking garages; surface parking; parking lighting; and parking signage and wayfinding. This project category was designed to provide adequate public facilities for transportation and to foster Transit Oriented Development (TOD) that will occur as a result of the planned transit station that will link Denton with passenger rail service to the City of Carrollton, where riders can transfer to the Dallas Area Rapid Transit (DART) system into the Dallas/ Fort Worth metroplex. The goal is to create compact, walkable, pedestrian- centered developments to enhance and act as a catalyst to spur additional development and redevelopment in the district. Complete Streets: are "multi- functional, pedestrian- oriented, aesthetically - pleasing, and safe and inviting for residents and visitors. Redeveloping the existing downtown street network into complete streets will create a pleasing public realm, which in turn supports and encourages a wide variety of new development and investment" according to the Downtown Implementation Plan. Elements of complete streets include the building to building improvements which may encompass: sidewalks, shared travel lanes (e.g. bus and bicycle), parallel and angled parking, pedestrian crosswalks, pedestrian and emergency bulb (American with Disabilities Act (ADA) accessibility), awnings, street improvements, planters, pedestrian street furniture, bike racks and pedestrian lighting. Downtown Projects: may include grants, loans and services for public and private development. Eligible TIF project costs are not limited to public uses and may also include projects that involve: historic preservation, demolition, environmental remediation and economic development grants. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. The chapter also includes a provision for the use of City employees, facilities and services. An example of a City service may include additional public safety personnel to serve the increased population created by the transit station and the surrounding transit oriented development. Solid 7 Exhibit 2 PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT D Project Plan waste and recycling services tailored to serve the downtown area is another example of a public service. Pursuant to the Texas Local Government Code, section 272.001, the City of Denton may utilize City -owned property that is located in a reinvestment zone to facilitate economic projects which the City and TIF Board deem appropriate and desirable. The City may acquire, lease, sell or otherwise transfer property to accomplish the public purpose of economic development that is consistent with the Project Plan. Such projects may include public - private partnerships, transit - oriented developments, or the recruitment of specific industries including, but not limited to, hi -tech or emerging technology companies, local start -up businesses, artesian or "maker" industries, the creative sector, bakeries, microbreweries, micro- distilleries, wineries, grocery stores, or other industries that the TIF Board and the City Council deem desirable. Utility Drainage: The downtown TIF district has an aging infrastructure and a number of properties that are situated in the floodplain making proper utility drainage an important component of the project plan. Utility drainage encompasses the physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities /systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices designed or intended to carry, direct, detain or otherwise control stormwater," according the Denton Development Code. Projects may include one or more categories that may be leveraged as an incentive for development in the TIF district. An example of such a project, that would include both the parking /transportation and the downtown project categories, is a public private partnership for the construction of a parking garage and mixed use development that includes a public investment for additional parking for the public. N. Exhibit 2 PROJECT PLAN - DENTON TIF NO. 1 PRELIMINARY EXHIBIT E Future Land Use Exhibit 3 MINUTES CITY OF DENTON DENTON TAX INCREMENT FINANCE ZONE NO.1 BOARD January 16, 2015 After determining that a quorum was present, the Denton Tax Increment Finance Zone No.1 Board convened on Friday, January 16, 2015 at 1:40 p.m. in the City Hall Work Session Room, 215 E. McKinney, Denton, Texas. PRESENT: Bob Moses, Harold Strong, Marty Rivers, Virgil Strange, and Chris Watts ABSENT: Hank Dickenson, and Kevin Roden STAFF PRESENT: George Campbell, John Cabrales, Aimee Bissett, Julie Glover, Christina Davis, Erica Sullivan, Karen Boenker, and Ron Menguita GUESTS: None REGULAR SESSION 1. Consider approval of the minutes of the June 27, 2014 Tax Increment Finance Zone No.1 Board meeting. Hank Dickenson motioned approval of the June 27, 2014 Tax Increment Finance Zone No.1 Board meeting as presented. The motion was seconded by Bob Moses and carried unanimously (5 -0). 2. Receive a report and hold a discussion regarding the annual ad valorem revenue of Downtown TIF Number One Erica Sullivan, ED Analysis, reviewed the certified and supplement summary that was distributed to the Board. Sullivan reported that the Downtown TIRZ Number One 2014 total apprised valuation of taxable real property was $116.8 million, a $16.3 million increase from the 2013 supplemental value of $100.5 million. The annual TIRZ fund contribution of property taxes and interest income for 2014 is $258,160. Staff discovered that the reports have not reflected accumulated interest to date. Once interest has been accounted for November and December the TIRZ fund will change slightly. Sullivan discussed the actual increase with the Board reviewing existing versus new construction and how the funds can be used. 3. Receive a report, hold a discussion and give staff direction regarding the 2014 Annual Report for Downtown TIF Number One Julie Glover presented the 2014 Annual Report for the Downtown TIF Number One. The only changes to the report are the member of the Board, due to City Council place changes and the numbers representing the growth and monies collected in the district written in the text of the report did not match the spreadsheet presented as an attachment to the report. Chris Watts motioned approval of the approval of the report 2014 Tax Increment Finance Zone No.1 Board meeting with corrections. The motion was seconded by Harold Strong and carried unanimously (5 -0). 4. Receive a report and hold a discussion regarding an innovation and technology recruitment initiative, part of which will take place within the Downtown TIF NUMBER ONE. Aimee Bissett gave a presentation on an innovation and technology recruitment initiative called CoDenton. Initial discussions of CoDenton, started in June 2014 and was added to the Economic Development budget in the Exhibit 3 2014/15 fiscal year. In her presentation, Bissett discussed that the program has a community- driven demand for hi -tech and emerging technology recruitment. It will support entrepreneurs and innovation with a co- working space with a business incubator for creating high -wage, knowledge -based jobs to retain our educated workforce. This will take the collaboration of technology infrastructure, such as fiber, wifi, small cell; education and workforce partnerships, nonprofit and investment partners like TechMill, Dallas Entrepreneur center, Hub & Spoke, and the startup community, and finally real estate development. The two key program components, entrepreneurship and recruitment, are key to its success. The proposed co- working space would offer daily or monthly desk and office rentals, a business incubator /accelerator program to launch or scale new startup businesses; events for mentoring, guest lectures, and hackathons; investment for recruiting /matching venture capital, and angel funding. Similar operating models that were investigated are investment vs. nonprofit /community- based, such as the DEC (Dallas Entrepreneur Center) operating model and local TechMill grassroots effort. Bissett's presentation included details for the DEC and TechMill programs. While discussing the many benefits of CoDenton, Bissett revealed that the platform MSNBC used for reporting the 2012 Olympics was built in Denton by a small team working at a coffee shop. 5. Receive a report from the City's Leadership Excellence and Enhancement Program (LEEP) participants and hold a discussion regarding their Right -of -Way Maintenance Project, including areas within the Downtown TIF NUMBER ONE. Bissett reported on this item, as Lancine Bentley was unable to attend. Bissett gave a brief introduction to the LEEP program and its purpose. The goal of the project is to collaborate with TxDOT and Union Pacific Railroad to implement a regular maintenance and beautification plan to create clean and attractive public rights -of -way along entryways and major thoroughfares throughout the community. 6. Receive a report and hold a discussion regarding E. Hickory Capital Improvements. Glover presented the update on E. Hickory St. covering work on the street, the Williams Trade Square parking lot, and marketing efforts. 7. Received Staff Activity Reports a. Businesses Closed: Gold Mine BBQ, Yogurt Fusion, S. Elm Restaurant and Bar, Last Drop Tavern, Smiling Moose Deli b. Businesses Opened: Bet the House BBQ, Painting With a Twist, Sweetwater, Oak Street Coffeehouse, Sub Shack, Big Fatty's Flaming Foods /Spanking Shack, Dark Ages Tattoos, Hypnotic Donuts, coming soon are Muddy Jakes, Service Industry, and Jacks Tavern BOARD WENT INTO CLOSED SESSION AT 1:00 P.M. Deliberations regarding Economic Development Negotiations — Under Texas Government Code Section 551.087. 8. Receive a report, hold a discussion, and give staff direction regarding an economic development incentive agreement for a catalyst project, and a lease of real property where a deliberation in an open meeting would have a detrimental effect on the position of the governing body in negotiations with a third party. This discussion shall include commercial and financial information the City has received from the developer which the City seeks to have locate, stay, or expand in or near the territory of the city, and with which the City is conducting economic development negotiations and lease negotiations; including the offer of financial or other incentive ( Bissett). BOARD RETURNED TO OPEN SESSION AT 1:38 P.M. Exhibit 3 Following the completion of the Closed Session, the Board will convene in a Regular Session to consider the following: 9. Make a recommendation to City Council regarding using Downtown TIF Number One funds for a 380 incentive for a catalyst project located within the TIF District. Dickenson motioned approval of making a recommendation to City Council regarding using the Downtown TIF Number One funds for a Chapter 380 Incentive Agreement for a catalyst project located within the TIF District by allowing 100 percent abatement of the revenue, maximum of $76,000 per year, generated by the project in the TIF Number One, up to $380,000 cumulative, allowing five to ten years to receive that reimbursement amount. The motion was seconded by Harold Strong and carried unanimously (5 -0). 10. Meeting adjourned at 1:40 p.m. Exhibit 4 MINUTES CITY OF DENTON ECONOMIC DEVELOPMENT PARTNERSHIP BOARD October 14, 2014 After determining that a quorum was present, the Economic Development Partnership Board convened on Tuesday, October 14, 2014 at 11:39 a.m. The meeting was held at the Civic Center Community Room, at 321 E. McKinney St., Denton TX 76207. PRESENT: Virgil Strange, Carrell Ann Simmons, Cleve Breedlove, Jim Fykes, Marty Rivers, and John Gilmer ABSENT: Chris Watts, Greg Johnson, and Neal Smatresk EX- OFFICIO: Present: George Campbell, Jamie Wilson, and Chuck Carpenter Absent: none STAFF PRESENT: Bryan Langley, Jon Fortune, Howard Martin, Aimee Bissett, Christina Davis, Julie Glover, Erica Sullivan, Michelle Cunningham, Adam Gawarecki, Quentin Hix, Mike Grim, William A. Bunselmeyer, Caroline Booth, and Kim Phillips GUESTS: Dr. Tom McCoy, LINT, representing LINT President, Dr. Smatresk, Kevin Roden, and Rob Justice REGULAR SESSION 1. Consider approval of the minutes of the September 9, 2014 meeting. Rivers motioned to approve the minutes of the September 9, 2014 meetings as presented. Gilmer seconded the motion. The minutes were approved unanimously with a vote of 6 -0. Receive a report and hold a discussion regarding an innovation and technology recruitment initiative. Bissett discussed prior action for the innovation and technology recruitment initiative stating that the EDP Board and City Council gave staff direction to consider pursuing the initiative and developing the program in April, 2014 at a joint meeting between them. The recruitment of hi -tech and emerging technology companies, and the support of entrepreneurship and innovation, is one of the new strategies and programs for Economic Development. Since the April meeting, a core group of community stokeholders has been meeting regularly to explore partnership opportunities and the creation of a program to fill the specific need in Denton. This group has included representatives from LINT, the City of Denton, TechMill, and the Dallas Entrepreneur Center, and a variety of interested community members and technology -based business representatives. Some of the program components will include a co- working space and entrepreneur recruitment. Receive a report and hold a discussion regarding the draft Strategic Action Agenda created by DADCO Consulting after the June 2014 economic development strategic planning retreat. Bissett reported that at after the joint meeting in June, the David Dodd, the DADCO Consultant, created the distributed report. The report includes the vision and mission statement and key strategies that the group created at the retreat. A fifth strategy, Targeted Recruitment, was added by staff. Each strategy will be an Action Agenda with an Economic Development staff member as the liaison. Each Action Agenda will identify additional key stakeholders; create and review goals, action plan, and metrics. We would like Action Agenda Teams to present their action plans for the 2015 calendar year at the December Board meeting. Exhibit 4 Economic Development Partnership Board Agenda October 14, 2014 Page 2 4. Staff Reports Bissett Met with the DEC (Dallas Entrepreneur Center) for a tour of their facility in Dallas. Was really impressed with the facility and the activity happening there on a daily basis. Great trip to Austin for lunch with Myra Crownover, had a good conversation with staff regarding Denton. Gawarecki c. Austin marketing trip included a dinner with the Lt. Governor. d. Working with four new prospects and have two coming in for site visits. e. New week will be at IEDC Booth f. Attended Austin trip with Bissett and Mike Grim. Grim g. Attended Austin trip with Bissett and Booth. Already seeing results from that trip. We need to treat them more like clients and hold regular meetings with them. WENT INTO CLOSED SESSION AT 12:17 p.m. Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087, and deliberations regarding Real Property - Under Texas Government Code Section 551.072. Receive a report, hold a discussion, and give staff direction regarding an economic development incentive agreement for a catalyst project, and a lease of real property where a deliberation in an open meeting would have a detrimental effect on the position of the governing body in negotiations with a third party. This discussion shall include commercial and financial information the City has received from the developer which the City seeks to have locate, stay, or expand in or near the territory of the city, and with which the Economic Development Partnership Board is conducting economic development negotiations and lease negotiations; including the offer of financial or other incentive. RETURNED TO REGULAR SESSION AT 12:49 Following the completion of the Closed Session, the Board will convene in a Regular Session to consider the following: 6. Under Section 551 -042 of the Texas Open Meetings Act, respond to inquiries from the Economic Development Partnership Board 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. 7. Meeting adjourn at 12:50 p.m. Exhibit 5 - Lease Agreement Axis Realty Group ^ �, � Fdet T���� Caxrrinefi _ A�iipG'��:1�4Y1 @iFtdt�tl:c�r� NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® COMMERCIAL LEASE AGREEMENT between Rail Yard Partners, LTD (Landlord) and City of Denton (Tenant) TABLE OF CONTENTS Article 1. Defined Terms 2. Lease and Term 3. Rent and Security Deposit 4. Taxes 5. Insurance and Indemnity 6. Use of Premises 7. Property Condition, Maintenance, Repairs and Alterations 8. Damage or Destruction 9. Condemnation 10. Assignment and Subletting 11. Default and Remedies 12. Landlord's Contractual Lien 13. Protection of Lenders 14. Environmental Representations and Indemnity 15. Professional Service Fees 16. Miscellaneous and Additional Provisions Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940,891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLooix.com Exhibit 5 - Lease Agreement COMMERCIAL LEASE AGREEMENT [Throughout this Lease, complete all blanks and check all boxes that apply. Blanks not completed and boxes not checked do not apply.] For good and valuable consideration, the parties to this Commercial Lease Agreement (the "Lease ") agree as follows: ARTICLE ONE DEFINED TERMS As used in this Lease, the terms set forth in this Article One have the following meanings: 1.01 Effective Date: The last date beneath the signatures of Landlord and Tenant on this Lease. 1.02 Landlord: Rail Yard Partners LTD Address: 525 S. Loop 288, Suite 105 Denton TX 76205 Telephone: (940) 382 -5000 Fax: Email: 1.03 Tenant: City of Denton Address: 215 E. McKinney Street Denton TX 76201 Telephone: Email: Fax: 1.04 Premises [include Suite or Unit No., if applicable]: 608 E Hickory St, Ste 128 Denton TX 76201 A. Building Name: The Rail B. Street address: 608 E. Hickory St, Ste 128 Denton, TX 76201 in Denton County, Texas. C. Legal description: The property on which the Premises are situated is described as:East Hickory Addition, Block A, Lots 1 and 2 and may be more particularly described on the attached Exhibit "A ", Survey or Legal Description (the "Property "). The term "Property" includes the land described on Exhibit "A ", and any improvements on the land (including the Premises). D. Floor Plan or Site Plan: Being a floor area of approximately 9216 square feet, or a land area of approximately square feet or approximately acres, and being more particularly shown in outline form on the attached Exhibit "B ", Floor Plan or Site Plan. COMMERCIAL LEASE AGREEMENT - Page 2 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement E. Tenant's Pro Rata Share: 32.532 %. 1.05 Term: 5 years and months beginning on March 1 , 2016 (the "Commencement Date ") and ending on February 28 2021 (the "Expiration Date "). Unless the context requires otherwise, references in this Lease to the "Term" include any renewal or extension of this Lease. [See Addendum "A ", Renewal Options, if applicable]. 1.06 Base Rent: Base Rent is due and payable in monthly installments during the Term of this Lease as set forth in this Section. Base Rent and all other sums due or payable by Tenant to Landlord under this Lease are collectively referred to in this Lease as the "Rent." Base Rent Payment Schedule On or before the first day of each month during the Term of this Lease, Tenant shall pay monthly installments of Base Rent as follows: Dates Monthly Base Rent From March 1, 2016 to February 28, 2017 $ 7,490.67; From March 1, 2017 to 02/28/2018 $ 7,767.15; From March 1, 2018 to 02/28/2019 $ 8,049.16; From 03/01/2019 to 02/28/2020 $ 8,336.81; From 03/01/2020 to February 28, 2021 $ 8,630.21; From to $ [Rent for any Renewal Term is determined pursuant to a separate Addendum, if applicable, and should not be set forth here.] 1.07 Percentage Rental Rate: %. [See Addendum "D ", Percentage Rental and Gross Sales Reports, if applicable] 1.08 Security Deposit: $ 17,280. 00 (due upon execution of this Lease). [See Section 3.041 1.09 Expense Reimbursements: A. Tenant shall pay Landlord as additional Rent (or pay the charges directly to the service provider, if applicable) the following expenses (or a portion of the expenses, if applicable) (each an "Expense Reimbursement' and collectively the "Expense Reimbursements ") that are incurred by or assessed against the Premises (as each of these terms is defined in this Lease) [check all boxes that apply]: ❑ Real Estate Taxes; ❑ Insurance Premiums; ❑ Common Area Maintenance (CAM) Expenses; ❑x Operating Expenses; ❑ Roof and Structural Maintenance Expenses; ❑ Electricity; ❑ Cable; ❑ Gas; ❑ Internet Access; COMMERCIAL LEASE AGREEMENT - Page 3 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www,zir)Loaix.com City of Denton Exhibit 5 - Lease Agreement ® Water; ® Sewer; ❑ Telephone; ❑ Trash Removal; and ❑ All other Utilities. B. Expense Definitions. 1. Real Estate Taxes. "Real Estate Taxes" means all general real estate taxes, ad valorem taxes, general and special assessments, parking surcharges, rent taxes, and other similar governmental charges levied against or applicable to the Property for each calendar year. 2. Insurance Premiums. "Insurance Premiums" means all Landlord's insurance premiums attributable to the Property, including but not limited to insurance for fire, casualty, general liability, property damage, medical expenses, extended coverage, and loss of rents coverage for up to 12 months' Rent. 3. Common Area Maintenance Expenses. "Common Area Maintenance Expenses" or "CAM Expenses" means all costs of maintenance, inspection and repairs of the Common Areas of the Property, including, but not limited to, those costs for security, lighting, painting, cleaning, decorations and fixtures, Utilities, ice and snow removal, trash disposal, project signs, roof repairs, pest control, project promotional expenses, property owners' association dues, wages and salary costs of maintenance personnel, and other expenses benefiting all the Property that may be incurred by Landlord, in its discretion, including sales taxes and a reasonable service charge for the administration thereof. The term "Common Areas" is defined as that part of the Property intended for the collective use of all tenants including, but not limited to, the parking areas, driveways, loading areas, landscaping, gutters and downspouts, plumbing, electrical systems, HVAC systems, roof, exterior walls, sidewalks, malls, promenades (enclosed or otherwise), meeting rooms, doors, windows, corridors and public rest rooms. CAM Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Landlord's original investment, the cost of tenant improvements, real estate brokers' fees, advertising of space for lease, or interest or depreciation on capital investments. 4. Operating Expenses. "Operating Expenses" means all costs of ownership, building management, maintenance, repairs and operation of the Property, including but not limited to Real Estate Taxes, Insurance Premiums, CAM Expenses, reasonable management fees, wages and salary costs of building management personnel, overhead and operational costs of a management office, janitorial, Utilities, and professional services such as accounting and legal fees. Operating Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Landlord's original investment, the cost of tenant improvements, real estate brokers' fees, advertising of space for lease, or interest or depreciation on capital investments. 5. Roof and Structural Maintenance Expenses. "Roof and Structural Maintenance Expenses" means all costs of maintenance, repair and replacement of the roof, roof deck, (lashings, skylights, foundation, floor slabs, structural components and the structural soundness of the building in general. 6. Utilities. "Utilities" means charges for electricity, cable, gas, Internet access, water, sewer, telephone, trash removal, and any other services that are commonly understood to be utilities, including connection charges. 7. Other Terms. Other terms that are not expressly defined are intended to have the meanings given those terms in common usage. COMMERCIAL LEASE AGREEMENT - Page 4 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zoForm® by zoo -ogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 5 - Lease Agreement C. Expense Reimbursement Limitations. The amount of Tenant's Expense Reimbursement will be determined by one of the following methods as described and defined below [check only one]: ❑ Base Year Adjustment; ❑ Expense Stop Adjustment; ® Pro Rata Adjustment; ❑ Fixed Amounts; or ❑ Net Lease. D. Expense Reimbursement Limitation Definitions. 1. Base Year Adjustment. If "Base Year Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of increases in the applicable expenses (those checked in Section 1.09.A. above) for the Property for any calendar year during the Term or during any Extension of this Lease, over such amounts paid by Landlord for the Base Year (the "Base Year "). 2. Expense Stop Adjustment. If "Expense Stop Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of increases in the applicable expenses (those checked in Section 1.09.A. above), for the Property for any calendar year during the Term or during any Extension of this Lease, over $ per square foot of floor area (as set forth in Section 1.04D) per year. 3. Pro Rata Adjustment. If "Pro Rata Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of the total amount of the applicable expenses (those checked in Section 1.09.A. above) for every calendar year during the Term and during any extension of this Lease. 4. Fixed Amounts. If "Fixed Amounts" has been checked above, Tenant shall pay to Landlord as additional Rent the following monthly amounts (regardless of whether they have been checked in Section 1.09.A. above) as Tenant's Expense Reimbursements to Landlord for the following expenses that are incurred by or assessed against the Property: Real Estate Taxes $ per month. Insurance Premiums $ per month. CAM Expenses $ per month. Operating Expenses $ per month. Roof & Structural Maintenance Expenses $ per month. Electricity $ per month. Cable $ per month. Gas $ per month. Internet Access $ per month. Water $ per month. Sewer $ per month. Telephone $ per month. Trash Removal $ per month. All Other Utilities $ per month. 5. Net Lease. If "Net Lease" has been checked above, then notwithstanding anything contained in this Lease to the contrary in Section 6.02, Article Seven or otherwise, Tenant shall be responsible for paying Tenant's Pro Rata Share of all costs of compliance with laws, ownership, maintenance, repairs, replacements, operation of the Premises, and operation of the Property, including but not limited to all costs of Real Estate Taxes, Insurance Premiums, Common Area Maintenance Expenses, Operating Expenses, Roof and Structural Maintenance Expenses, and all Utilities (regardless of whether they have been checked in Section 1.09.A. above). COMMERCIAL LEASE AGREEMENT - Page 5 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement E. First Payment. The sum of the Monthly Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there is a free rent period), and the initial estimated monthly Expense Reimbursement payments (before adjustments) is set forth below. Upon the execution of this Lease, in addition to the Security Deposit, Tenant shall pay the first monthly payment in the sum of the amounts set forth below. Initial Monthly Base Rent $ 7,490.67 Real Estate Taxes $ Insurance Premiums $ CAM Expenses $ Operating Expenses $ 3,456.00 Roof & Structural Maintenance Expenses $ Electricity $ Cable $ Gas $ Internet Access $ Water $ Sewer $ Telephone $ Trash Removal $ All Other Utilities $ Total $ 10,946.67 [Complete the amount of the first Base Rent payment to be due, as well as estimated amounts of any other monthly payments that start at the beginning of the Term of this Lease. Put N/A or strike through the rest. Any estimated amounts are subject to adjustment pursuant to other provisions of this Lease. If any expense payments are not due at the beginning of the Term, they may begin later in the Term pursuant to other provisions of this Lease.] Expense Reimbursement Payments. Tenant agrees to pay any end -of -year lump sum Expense Reimbursement within 30 days after receiving an invoice from Landlord. Any time during the Term, Landlord may direct Tenant to pay monthly an estimated portion of the projected future Expense Reimbursement amount. Any such payment directed by Landlord will be due and payable monthly on the same day that the Base Rent is due. Landlord may, at Landlord's option and to the extent allowed by applicable law, impose a Late Charge on any Expense Reimbursement payments that are not actually received by Landlord on or before the due date, in the amount and manner set forth in Section 3.03 of this Lease. Any Expense Reimbursements relating to partial calendar years will be prorated accordingly. If Tenant's Pro Rata Share is not expressed in Section 1.04.E of this Lease, then Tenant's Pro Rata Share of such Expense Reimbursements will be based on the square footage of useable area contained in the Premises in proportion to the square footage of useable building area of the Property. Tenant may audit or examine those items of expense in Landlord's records that relate to Tenant's obligations under this Lease. Landlord shall promptly refund to Tenant any overpayment that is established by an audit or examination. If the audit or examination reveals an error of more than 5% over the figures billed to Tenant, Landlord shall pay the reasonable cost of the audit or examination. G. ❑ Gross -Up Provisions. [Check this only if applicable.] If the Property is a multi- tenant building and is not fully occupied during the Base Year or any portion of the Term, an adjustment will be made in computing the variable costs for the Base Year and each applicable calendar year of the Term. Variable costs will include only those items of expense that vary directly proportionately to the occupancy of the Property. Variable costs that are included in the CAM Expenses, Operating Expenses and Utilities will be increased proportionately to the amounts that, in Landlord's reasonable judgment, would have been incurred had 95% of the useable area of the Property been occupied during those years. COMMERCIAL LEASE AGREEMENT - Page 6 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement 1.10 Permitted Use: Office [See Section 6.011 1.11 Party to whom Tenant is to deliver payments under this Lease is the Landlord, unless one of the following boxes is checked, in which case Tenant shall deliver payments to: ❑ Principal Broker, or ❑ Other [Set forth name and address, if other than Landlord or Principal Broker]: 1.12 Principal Broker: Axis Realty Group is acting as the agent for Landlord exclusively, unless one of the following boxes is checked, in which case Principal Broker is acting as: ❑ the agent for Tenant exclusively, or ❑ an intermediary. 1.13 Principal Broker's Address: 1517 Centre Place Dr Denton TX 76205 Telephone: (940)891 -2947 Fax: (940) 891-2948 Email: alex @axisrealty.biz Cooperating Broker: is acting as the agent for Tenant exclusively, which case Cooperating Broker is acting as; intermediary. Cooperating Broker's Address: unless one of the following boxes is checked, ❑ the agent for Landlord exclusively, or ❑ Telephone: Fax: Email: 1.14 The Professional Service Fee (the "Fee "): Iti1 an A. The percentages applicable in Section 15.01 and Section 15.02 to leases will be -% of the Base Rent to Principal Broker and % of the Base Rent to Cooperating Broker. If the Fee is based on an amount per square foot, that amount is $ per square foot to Principal Broker and $ per square foot to Cooperating Broker. The Fee will be paid in the manner described in Subsection 15.01A (half on execution and half on the Commencement Date), unless this box ❑ is checked, in which case the Fee will be paid in the manner described in Subsection 15.01 B (monthly). B. The percentages applicable in Section 15.03 in the event of a sale will be % to Principal Broker and % to Cooperating Broker. 1.15 Disclosure of Dual Capacity as Broker and Principal. [Complete if applicable] A. is a licensed Texas real estate broker and is acting in a dual capacity as broker for Landlord and as a principal in this transaction, as he or she may be Landlord (or one of the owners of Landlord). B. is a licensed Texas real estate broker and is acting in a dual capacity as broker for Tenant and as a principal in this transaction, as he or she may be Tenant (or one of the owners of Tenant). 1.16 Exhibits and Addenda. Any exhibit or addendum attached to this Lease (as indicated by the boxes checked below) is incorporated as a part of this Lease. Any term not specifically defined in an Addendum will have the same meaning given to it in the body of this Lease. ® Exhibit "A" Survey and /or Legal Description of the Property ❑x Exhibit "B" Floor Plan and /or Site Plan ® Exhibit "C" Information About Brokerage Services ® Exhibit "D" Other Grant Agreement COMMERCIAL LEASE AGREEMENT - Page 7 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement • Addendum "A" Renewal Options • Addendum "B" Construction of Improvements by Landlord ❑ Addendum "C" Construction of Improvements by Tenant ❑ Addendum "D" Percentage Rental and Gross Sales Reports ❑ Addendum "E" Right of First Refusal for Additional Space ❑ Addendum "F" Guaranty ® Addendum "G" Rules and Regulations ❑ Addendum "H" Rooftop Lease ❑ Addendum "I" Parking ❑ Addendum "J" Additional Provisions Addendum ❑x Addendum "K" Other Work Letter ARTICLE TWO LEASE AND TERM 2.01 Lease of Premises for Term. Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord for the Term stated in Section 1.05. The Commencement Date is the date specified in Section 1.05, unless advanced or delayed under any provision of this Lease. 2.02 Delays in Commencement. Landlord will not be liable to Tenant if Landlord does not deliver possession of the Premises to Tenant on the Commencement Date specified in Section 1.05 above. Landlord's non - delivery of possession of the Premises to Tenant on the Commencement Date will not affect this Lease or the obligations of Tenant under this Lease. However, the Commencement Date will be delayed until possession of the Premises is delivered to Tenant. The Term will be extended for a period equal to the delay in delivery of possession of the Premises to Tenant, plus the number of days necessary for the Term to expire on the last day of a month. If Landlord does not deliver possession of the Premises to Tenant within 60 days after the Commencement Date specified in Section 1.05, Tenant may cancel this Lease by giving a written notice to Landlord at any time after the 60 -day period ends, but before Landlord actually delivers possession of the Premises to Tenant. If Tenant gives such notice, this Lease will be canceled effective as of the date of its execution, any prepaid amounts will be reimbursed to Tenant, and no party will have any rights or obligations under this Lease. If Tenant does not give such notice within the time specified, Tenant will have no right to cancel this Lease, and the Term will commence upon the delivery of possession of the Premises to Tenant. If delivery of possession of the Premises to Tenant is delayed, Landlord and Tenant shall, upon such delivery, execute an amendment to this Lease setting forth the revised Commencement Date and Expiration Date of the Term. 2.03 Early Occupancy. If Tenant occupies the Premises before the Commencement Date, Tenant's occupancy of the Premises will be subject to all of the provisions of this Lease. Early occupancy of the Premises will not advance the Expiration Date. Unless otherwise provided in this Lease, Tenant shall pay Base Rent and all other charges specified in this Lease for the period of occupancy. 2.04 Holding Over. Tenant shall vacate the Premises immediately upon the expiration of the Term or earlier termination of this Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all damages incurred by Landlord as a result of any delay by Tenant in vacating the Premises. If Tenant does not vacate the Premises upon the expiration of the Term or earlier termination of this Lease, Tenant's occupancy of the Premises will be a day -to -day tenancy, subject to all of the terms of this Lease, except that the Base Rent during the holdover period will be increased to an amount that is one - and - one -half (11/2) times the Base Rent in effect on the expiration or termination of this Lease, computed on a daily basis for each day of the holdover period, plus all additional sums due under this Lease. This Section will not be construed as Landlord's consent for Tenant to hold over or to extend this Lease. COMMERCIAL LEASE AGREEMENT - Page 8 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by ziplogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zit)Loaix.com City of Denton Exhibit 5 - Lease Agreement ARTICLE THREE RENT AND SECURITY DEPOSIT 3.01 Manner of Payment. Tenant shall pay the Rent to Landlord at the address set forth in Section 1.02, unless another person is designated in Section 1.11, or to any other party or address Landlord may designate in any written notice delivered to Tenant. Landlord may designate, in a written notice delivered to Tenant, the party authorized to receive Rent and act on behalf of Landlord to enforce this Lease. Any such authorization will remain in effect until it is revoked by Landlord in a subsequent written notice delivered to Tenant. Any payments made to a third party designated by Landlord will be deemed made to Landlord when received by the designated third party. All sums payable by Tenant under this Lease, whether or not expressly denominated as Rent, will constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all other purposes. 3.02 Time of Payment. Upon execution of this Lease, Tenant shall pay the installment of Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there is a free rent period). On or before the first day of the next month and each month thereafter, the installment of Base Rent and other sums due under this Lease will be due and payable, in advance, without off -set, deduction or prior demand. Tenant shall cause payments to be properly mailed or otherwise delivered so as to be actually received (and not merely deposited in the mail) by Landlord (or the party identified in Section 1.11, or any other third party designated by Landlord) on or before the due date. If the Term commences or ends on a day other than the first or last day of a calendar month, the rent for any partial calendar month following the Commencement Date or preceding the end of the Term will be prorated. Tenant shall pay any such prorated portion for a partial calendar month at the beginning of the Term on the Commencement Date. Tenant shall pay any such prorated portion for a partial calendar month at the end of the Term on the first day of that calendar month. 3.03 Late Charges. Tenant's failure to promptly pay sums due under this Lease may cause Landlord to incur unanticipated costs. The exact amount of those costs is impractical or extremely difficult to ascertain. The costs may include, but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by any ground lease or deed of trust encumbering the Premises. Payments due to Landlord under this Lease are not an extension of credit. Therefore, if any payment under this Lease is not actually received on or before the due date (and not merely deposited in the mail), Landlord may, at Landlord's option and to the extent allowed by applicable law, impose a Late Charge on any late payments in an amount equal to 10% of the amount of the past due payment (the "Late Charge ") after the payment is more than five days past due. A Late Charge may be imposed only once on each past due payment. Any Late Charge will be in addition to Landlord's other remedies for nonpayment of Rent. If any check tendered by Tenant under this Lease is dishonored for any reason, Tenant shall pay to Landlord a dishonored check fee of $30.00, plus (at Landlord's option) a Late Charge as provided above until Good Funds (defined below) are received by Landlord. The parties agree that any Late Charge and dishonored check fee represent a fair and reasonable estimate of the costs Landlord will incur by reason of the late payment or dishonored check. If there are any Late Charges, dishonored check fees, installments of Base Rent, and any other unpaid charges or reimbursements due to Landlord, then Landlord may apply any payments received from Tenant to any amounts due in any order Landlord may choose. Notwithstanding the foregoing, Landlord will not impose a Late Charge as to the first late payment in any calendar year, unless Tenant fails to pay the late payment to Landlord within three business days after the delivery of a written notice from Landlord to Tenant demanding the late payment be paid. However, Landlord may impose a Late Charge without advance notice to Tenant on any subsequent late payment in the same calendar year. 3.04 Security Deposit. Upon execution of this Lease, in addition to the installment of Base Rent due under Section 3.02, and in addition to any other amounts that are due from Tenant upon the execution of this Lease, Tenant shall deliver to Landlord a Security Deposit in the amount stated in Section 1.08. Landlord may apply all or part of the Security Deposit to any unpaid Rent, and damages and charges for which Tenant is legally liable under this Lease, and damages and charges that result from a breach of this Lease, including but not limited to, the cost to cure Tenant's failure to comply with Section 7.05 and any other provision that requires Tenant to leave the Premises in a certain condition upon the expiration or termination of this Lease. If Landlord uses any part of the Security Deposit, Tenant shall COMMERCIAL LEASE AGREEMENT - Page 9 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Looix.com City or Denton Exhibit 5 - Lease Agreement restore the Security Deposit to its full amount within 10 days after Landlord's written demand. Tenant's failure to restore the full amount of the Security Deposit within the time specified will be a default under this Lease. No interest will be paid on the Security Deposit. Landlord will not be required to keep the Security Deposit separate from its other accounts, and no trust relationship is created with respect to the Security Deposit. After the expiration of this Lease, Landlord shall refund the unused portion of the Security Deposit, if any, to Tenant within 60 days after the date Tenant surrenders possession of the Premises and provides a written notice to Landlord of Tenant's forwarding address for the purpose of refunding the Security Deposit. The provisions of this Section will survive the expiration or termination of this Lease. 3.05 Good Funds Payments. If any two or more payments by check from Tenant to Landlord for Rent are dishonored and returned unpaid, thereafter Landlord may, at Landlord's option, by the delivery of a written notice to Tenant, require that all future payments of Rent for the remaining Term of this Lease must be made by cash, certified check, cashier's check, official bank check, money order, wire transfer or automatic electronic funds transfer ( "Good Funds "), and that the delivery of Tenant's personal or corporate check will no longer constitute payment of Rent under this Lease. Any acceptance by Landlord of a payment for Rent by Tenant's personal or corporate check thereafter will not be construed as a waiver of Landlord's right to insist upon payment by Good Funds as set forth in this Section. ARTICLE FOUR TAXES 4.01 Payment by Landlord. Landlord shall pay the real estate taxes on the Premises during the Term, subject to reimbursement by Tenant pursuant to any other provision in this Lease. 4.02 Improvements by Tenant. If the real estate taxes levied against the Premises for the year in which the Term commences are increased as a result of any additions or improvements made by Tenant, or by Landlord at Tenant's request, Tenant shall pay to Landlord upon demand the amount of the increase and continue to pay the increase during the Term. Landlord shall use reasonable efforts to obtain from the tax assessor a written statement of the amount of the increase due to such additions or improvements. 4.03 Joint Assessment. If the real estate taxes are assessed against the Premises jointly with other property that is not part of the Premises, the real estate taxes applicable to the Premises will be equal to the amount bearing the same proportion to the aggregate assessment that the total square feet of building area in the Premises bears to the total square feet of building area included in the joint assessment. If there are no improvements on the Property or the other property, then land area will be used instead of building area for the calculation of the proportional assessment. If there are improvements on one of the jointly assessed properties but not on the other property, then the calculation of the proportional assessment must be done in a reasonable manner. 4.04 Personal Property Taxes. Tenant shall pay all taxes assessed against trade fixtures, furnishings, equipment, inventory, products, or any other personal property belonging to Tenant. Tenant shall use reasonable efforts to have Tenant's property taxed separately from the Premises. If any of Tenant's property is taxed with the Premises, Tenant shall pay the taxes for Tenant's property to Landlord within 15 days after Tenant receives a written statement from Landlord for the property taxes. 4.05 Waiver of Right to Protest Taxes. Unless otherwise provided in this Lease: (i) Landlord retains the right to protest the tax assessment of the Property, and Tenant waives the right to protest; and (ii) Tenant waives Landlord's obligation to provide Tenant with a notice of the tax valuation of the Property. ARTICLE FIVE INSURANCE AND INDEMNITY 5.01 Property Insurance. During the Term, Landlord shall maintain insurance policies covering damage to the Premises in an amount or percentage of replacement value as Landlord deems reasonable in relation to the age, location, type of construction and physical condition of the Premises COMMERCIAL LEASE AGREEMENT - Page 10 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zinLooix.com City of Denton Exhibit 5 - Lease Agreement and the availability of insurance at reasonable rates. The policies will provide protection against risks and causes of loss that Landlord reasonably deems necessary. Landlord may, at Landlord's option, obtain insurance coverage for Tenant's fixtures, equipment and improvements in or on the Premises. Promptly after the receipt of a written request from Tenant, Landlord shall provide a certificate of insurance showing the insurance coverage then in effect. Tenant shall, at Tenant's expense, obtain and maintain insurance on Tenant's fixtures, equipment and improvements in or on the Premises as Tenant reasonably deems necessary to protect Tenant's interest. Any property insurance carried by Landlord or Tenant will be for the sole benefit of the party carrying the insurance and under its sole control. 5.02 Increases in Premiums. Tenant shall not conduct or permit any operation or activity, or store or use any materials, in or around the Premises that would cause suspension or cancellation of any insurance policy carried by Landlord. If Tenant's use or occupancy of the Premises causes Landlord's insurance premiums to increase, then Tenant shall pay to Landlord, as additional Rent, the amount of the increase within 10 days after Landlord delivers written evidence of the increase to Tenant. 5.03 Liability Insurance. During the Term, Tenant shall maintain a commercial general liability insurance policy, at Tenant's expense, insuring Tenant against liability arising out of the use or occupancy of the Premises, and naming Landlord as an additional insured. The initial amounts of the insurance must be at least $1,000,000 or, if the following blank is completed $ for Each Occurrence, $2,000,000 or, if the following blank is completed $ General Aggregate per policy year, and $10,000 for Medical Expense. If Tenant's liability insurance coverage is less than $5,000,000, and if this box ❑ is checked, then Tenant must also maintain a commercial liability umbrella policy in amount to provide a combination of liability insurance coverage to equal a $5,000,000 total limit. The coverage amounts will be subject to periodic increases as Landlord may reasonably determine from time to time. The amounts of the insurance will not limit Tenant's liability or relieve Tenant of any obligation under this Lease. The policies must contain cross - liability endorsements and must insure Tenant's performance of the indemnity provisions of Section 5.04. The policies must contain a provision that prohibits cancellation or modification of the policy except upon 30 days' prior written notice to Landlord. Tenant shall deliver a copy of the policy or certificate of insurance to Landlord before the Commencement Date and before the expiration of the policy during the Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense. 5.04 Indemnity. Landlord will not be liable to Tenant or to Tenant's employees, agents, invitees or visitors, or to any other person, for any injury to persons or damage to property on or about the Premises or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or any other person entering the Premises under express or implied invitation of Tenant, or arising out of the use of the Premises by Tenant and the conduct of Tenant's business, or arising out of any breach or default by Tenant in the performance of Tenant's obligations under this Lease. Tenant will not be liable for any injury or damage caused by the negligence or misconduct of Landlord, or Landlord's employees or agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss, expense or damage arising out of such damage or injury. 5.05 Waiver of Subrogation. Each party to this Lease waives any and every claim that arises or may arise in its favor against the other party during the Term of this Lease for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Premises, to the extent the loss or damage is covered by and recoverable under valid and collectible insurance policies. These mutual waivers are in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties. Inasmuch as these mutual waivers will preclude the assignment of any such claim by way of subrogation to an insurance company (or any other person), each party agrees to immediately give to each insurance company that has issued an insurance policy to such party written notice of the terms of such mutual waivers, and to cause the policies to be endorsed to prevent the invalidation of the insurance coverage by reason of these waivers. COMMERCIAL LEASE AGREEMENT - Page 11 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLociix.com City of Denton Exhibit 5 - Lease Agreement ARTICLE SIX USE OF PREMISES 6.01 Permitted Use. Tenant may use the Premises only for the Permitted Use stated in Section 1.10. Tenant acknowledges that: (1) the current use of the Premises or the improvements located on the Premises, or both, may not conform to city ordinances or restrictive covenants with respect to the permitted use, zoning, height limitations, setback requirements, minimum parking requirements, coverage ratio of improvements to land area, and other matters that may have a significant impact upon the Tenant's intended use of the Premises; (ii) Tenant has independently investigated and verified to Tenant's satisfaction the extent of any limitations or non - conforming uses of the Premises; and (iii) Tenant is not relying upon any representations of Landlord or the Brokers with respect to any 4w such matters. L "tar d o-ckno w ItAl t S +WdIA ''5' 1 Y14'evt,-1' _f > WkV6 6L , rd 6.02 Compliance with Laws. Tenant shall comply with all governmental laws, ordinances and Premises, and will comply with all governmental �w✓" t"11 IY regulations applicable to the use of the promptly orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Premises, all at Tenant's sole expense, including any expense or cost resulting from the construction or installation of fixtures and improvements or other accommodations ham,• "'t o¢tt, for handicapped or disabled persons required for compliance with governmental laws and regulations, including but not limited to the Texas Architectural Barriers Act (the "TABA ") and the Americans with Ce^fdri Disabilities Act (the "ADA "). To the extent any alterations to the Premises are required by the TABA, 6)pum� the ADA or other applicable laws or regulations, Tenant shall bear the expense of the alterations. To the extent any alterations to areas of the Property outside the Premises are required by the TABA, the b ra > m ADA or other applicable laws or regulations (for "path of travel" requirements or otherwise), Landlord shall bear the expense of the alterations. , {� 6.03 Certificate of Occupancy. If required, Tenant shall apply for Certificate of Occupancy from the municipality in which the Property is located before the Commencement Date, and obtain a Certificate rev' " t of Occupancy before Tenant occupies the Premises. If Tenant is unable to obtain a Certificate of C' Occupancy after making an application and diligently pursuing it, then Tenant may terminate this Lease by delivering a written notice to Landlord, unless either Landlord or Tenant is willing and able to cure the defects that prevented the issuance of the Certificate of Occupancy. Either Landlord or Tenant may cure any such defects, at their own expense, including any repairs, replacements, or installations of any items that are not presently existing on the Premises, but neither of them have any obligation to do so (unless another provision of this Lease states otherwise). If Tenant delivers a written termination notice to Landlord under this Section, and then any defects are cured and a Certificate of Occupancy is issued within 15 days after Tenant delivered the notice, then this Lease r; will remain in force. If this Lease is terminated because Landlord and Tenant cannot get a Certificate (.[ of Occupancy, then Landlord will return to Tenant any prepaid rent and any Security Deposit, and the, parties will have no further obligations under this Lease. References in this Lease to a "Certificate of Occupancy" mean a Certificate of Occupancy sufficient to allow the Tenant to occupy the Premises for the Permitted Use. 6.04 Signs. Without the prior written consent of Landlord, Tenant may not place any signs, ornaments or other objects on the Premises or the Property, including but not limited to the roof or exterior of the building or other improvements on the Property, or paint or otherwise decorate or deface the exterior of the building or other improvements on the Property. Any signs installed by Tenant must conform to applicable laws, deed restrictions, and other applicable requirements. Tenant must remove all signs, decorations and ornaments at the expiration or termination of this Lease, and must repair any damage and close any holes caused by installation or removal. 6.05 Utility Services. Unless otherwise provided in this Lease, Tenant shall pay the cost of all Utilities used for the Premises, and the cost of replacing light bulbs and tubes. Unless otherwise required by law, Landlord is the party entitled to designate utility and telecommunication service providers to the Property and the Premises. Landlord may, at Landlord's option, allow Tenant to select the provider. If Tenant selects the provider, any access or alterations to the Property or the Premises necessary for the Utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold or delay. If Landlord incurs any utility or connection charges that COMMERCIAL LEASE AGREEMENT - Page 12 ©NTCAR 2014 -- Form No. 2 (3/2014) Produced with zipFomi6 by zlpLogiz 16070 Fifteen Mae Road, Fraser, Michigan 46026 www zloloa1XSOm (city of Denton Exhibit 5 - Lease Agreement Tenant is responsible to pay and Landlord pays the charges, Tenant shall reimburse Landlord immediately upon receipt of a written notice from Landlord stating the amount of the charges. 6.06 Landlord's Access. Landlord and Landlord's agents will have the right to, upon reasonable advance notice, and without unreasonably interfering with Tenant's business, enter the Premises: (a) to inspect the general condition and state of repair of the Premises, (b) to make repairs required or permitted under this Lease, (c) to show the Premises or the Property to any prospective tenant or purchaser, and (d) for any other reasonable purpose. If Tenant changes the locks on the Premises, Tenant must provide Landlord with a copy of each separate key upon Landlord's request. During the last 150 days of the Term, Landlord and Landlord's agents may erect signs on or about the Premises advertising the Premises for lease or for sale. 6.07 Possession. If Tenant pays the Rent, properly maintains the Premises, and complies with all other terms of this Lease, Tenant may occupy and enjoy the Premises for the full Term, subject to the provisions of this Lease. 6.08 Exemptions from Liability. Landlord will not be liable for any damage to the business (including any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Tenant, Tenant's employees, invitees or customers, or for any injury to Tenant or Tenant's employees, invitees, customers or any other person in or about the Premises, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Premises or other portions of the Property, or from other sources or places; or (d) any act or omission of any other occupant of the Property. The provisions of this Section will not, however, exempt Landlord from liability for Landlord's gross negligence or willful misconduct. ARTICLE SEVEN PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS 7.01 Property Condition. Except as disclosed in writing by Landlord to Tenant before the execution of this Lease, to the best of Landlord's actual knowledge: (i) the Premises have no known latent structural or construction defects of a material nature; and (ii) none of the improvements to the Premises have been constructed with materials known to be a potential health hazard to occupants of the Premises. Unless otherwise expressly set forth in this Lease, Landlord represents that on the Commencement Date (and for a period of 30 days thereafter): (a) the fixtures and equipment serving the Premises are in good operating condition, including the plumbing, electrical and lighting systems, any fire protection sprinkler system, the HVAC (defined below) systems and equipment, the roof, skylights, doors, overhead doors, windows, dock levelers and elevators; and (b) the interior of the Premises is in good condition. Tenant will have a period of 30 days after the Commencement Date to inspect the Premises and notify Landlord in writing of any defects and maintenance, repairs or replacements required to the above named fixtures, equipment and interior. Within a reasonable period of time after the timely receipt of any such written notice from Tenant, Landlord shall, at Landlord's expense, correct the defects and perform the maintenance, repairs and replacements. 7.02 Acceptance of Premises. Tenant has inspected, or has had an opportunity to inspect, the Premises, before the execution of this Lease. Tenant has determined that the Premises may be used for the Permitted Use. Subject to the provisions in Section 7.01, and any other express obligations of Landlord in this Lease to construct any improvements, make repairs, or correct defects, Tenant agrees to accept the Premises in "AS IS" condition and with all faults (other than latent defects). To the extent permitted by applicable law, Tenant waives any implied warranties of Landlord as to the quality or condition of the Premises or the Property, or as to the fitness or suitability of the Premises or the Property for any particular use. 7.03 Maintenance and Repairs. Landlord will not be required to perform any maintenance or repairs, or management services, in the Premises, except as otherwise provided in this Lease. Tenant will be fully responsible, at Tenant's expense, for all maintenance and repairs, and management services, other than those that are expressly set forth in this Lease as Landlord's responsibility. COMMERCIAL LEASE AGREEMENT - Page 13 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by ziplogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Looix.com City of Denton Exhibit 5 - Lease Agreement A. Landlord's Obligations. (1) Subject to the provisions of Article Eight (Damage or Destruction) and Article Nine (Condemnation) and except for damage caused by any act or omission of Tenant, Landlord shall keep the roof, skylights, foundation, structural components and the structural portions of exterior walls of the Premises in good order, condition and repair. Landlord will not be obligated to maintain or repair windows, doors, overhead doors, plate glass or the surfaces of walls. In addition, Landlord will not be obligated to make any repairs under this Section until a reasonable time after receipt of written notice from Tenant of the need for repairs. If any repairs are required to be made by Landlord, Tenant shall, at Tenant's sole cost and expense, promptly remove Tenant's furnishings, fixtures, inventory, equipment and other property, to the extent required to enable Landlord to make repairs. Landlord's liability under this Section will be limited to the cost of those repairs or corrections. Tenant waives the benefit of any present or future law that might give Tenant the right to repair the Premises at Landlord's expense or to terminate this Lease because of the condition. (2) All repairs, maintenance, management and other services to be performed by Landlord or Landlord's agents involve the exercise of professional judgment by service providers, and Tenant expressly waives any claims against Landlord for breach of warranty arising from the performance of those services. B. Tenant's Obligations. Subject to the provisions of Section 7.01, Section 7.03A, Article Eight (Damage or Destruction) and Article Nine (Condemnation), Tenant shall, at all times, keep all other portions of the Premises in good order, condition and repair (except for normal wear and tear), including, but not limited to, maintenance, repairs and all necessary replacements of the windows, plate glass, doors, overhead doors, HVAC equipment, electrical and lighting systems, fire protection sprinkler system, dock levelers, elevators, interior and exterior plumbing, the interior and exterior of the Premises in general, pest control and extermination, down spouts, gutters, paving, railroad siding, care of landscaping and regular mowing of grass. In addition, Tenant shall, at Tenant's expense, repair any damage to any portion of the Property, including the roof, skylights, foundation, or structural components and exterior walls of the Premises, caused by Tenant's acts or omissions. If Tenant fails to maintain and repair the Property as required by this Section, Landlord may, on 10 days' prior written notice, enter the Premises and perform the maintenance or repair on behalf of Tenant, except that no notice is required in case of emergency, and Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing the maintenance or repair, plus a reasonable service charge. C. HVAC Service. This Section pertains to the heating, ventilation and air- conditioning ( "HVAC ") systems and equipment that service the Premises. [Check one box only.] ❑ (1) Landlord is obligated to provide the HVAC services to the Premises only during the operating hours of the Property (as described below). ❑ (2) Landlord will provide the HVAC services to the Premises during the operating hours of the Property (as described below) for no additional charge and will, at Tenant's request, provide HVAC services to the Premises during other hours for an additional charge of $ per hour. Tenant will pay Landlord the charges under this paragraph promptly after receipt of Landlord's invoice. Hourly charges are charged on a half -hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services in advance. ® (3) Tenant will pay for the HVAC services under this Lease. For any HVAC system that services only the Premises, Tenant shall, at Tenant's own cost and expense, enter into a regularly scheduled preventative maintenance and service contract for all such HVAC systems and equipment during the Term. If Tenant fails to enter into such a service contract acceptable to Landlord, Landlord may do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and expense thereof, plus a reasonable service charge, periodically upon demand. COMMERCIAL LEASE AGREEMENT - Page 14 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement D. Operating Hours of the Property. The operating hours of the Property are the times reasonably determined by Landlord unless they are specified here. [specify the operating hours of the Property including the days of the week, and whether Saturdays, Sundays and holidays are included]: 24 hours per day, 7 days per week are permitted. E. Cleaning. Tenant must keep the Premises clean and sanitary and promptly dispose of all trash in appropriate receptacles. Tenant will provide, at Tenant's expense, janitorial services to the Premises, unless this box ❑ is checked, in which case Landlord will provide janitorial services to the Premises that are customary for the property type. Tenant will maintain, at Tenant's expense, any grease trap on the Property that Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law. 7.04 Alterations, Additions and Improvements. Tenant may not create any openings in the roof or exterior walls without the prior written consent of Landlord. Tenant may not make any alterations, additions or improvements to the Premises ( "Alterations ") without the prior written consent of Landlord. However, Tenant is not required to obtain the Landlord's prior written consent for non - structural Alterations that do not cost more than $5,000 and that do not modify or affect the roof, plumbing, HVAC systems or electrical systems. Consent for non - structural Alterations in excess of $5,000 or that modify or affect plumbing, HVAC systems or electrical systems will not be unreasonably withheld, conditioned or delayed by Landlord. Tenant may erect or install trade fixtures, shelves, bins, machinery, HVAC systems, and refrigeration equipment, provided that Tenant complies with all applicable governmental laws, ordinances, codes, and regulations. At the expiration or termination of this Lease, Tenant may, subject to the restrictions of Section 7.05, remove items installed by Tenant, provided Tenant is not in default at the time of the removal and Tenant repairs, in a good and workmanlike manner, any damage caused by the installation or removal. Tenant shall pay for all costs incurred or arising out of Alterations and will not permit any mechanic's or materialman's lien to be filed against the Premises or the Property. Upon request by Landlord, Tenant shall deliver to Landlord proof of payment, reasonably satisfactory to Landlord, of all costs incurred in connection with any Alterations. 7.05 Condition upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Premises to Landlord broom clean and in the same condition as received, except for normal wear and tear and any damage caused by a casualty that Tenant is not otherwise obligated to repair under any provision of this Lease. Tenant will not be obligated to repair any damage that Landlord is required to repair under Article Seven (Property Condition) or Article Eight (Damage or Destruction). In addition, Landlord may require Tenant to remove any Alterations before the expiration or termination of this Lease and to restore the Premises to their prior condition, all at Tenant's expense. However, Tenant will not be required to remove any Alterations that were made with Landlord's consent or that were otherwise permitted under the terms of this Lease. All Alterations that Tenant does not remove will become Landlord's property upon the expiration or termination of this Lease. In no event may Tenant remove any of the following items without Landlord's prior written consent: (i) electrical wiring or power panels; (ii) lighting or lighting fixtures; (iii) wall coverings, drapes, blinds or other window coverings; (iv) carpets or other floor coverings; (v) HVAC equipment; (vi) plumbing equipment; (vii) fencing or gates; or (viii) any fixtures, equipment or other items that, if removed, would affect the operation or the appearance of the Property. However, Tenant may remove Tenant's trade fixtures, equipment used in Tenant's business, and personal property. The provisions of this Section will survive the expiration or termination of this Lease. COMMERCIAL LEASE AGREEMENT - Page 15 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziDLooix.com City of Denton Exhibit 5 - Lease Agreement ARTICLE EIGHT DAMAGE OR DESTRUCTION 8.01 Notice. If any buildings or other improvements situated on the Property are damaged or destroyed by fire, flood, windstorm, tornado or other casualty, Tenant shall immediately give written notice of the damage or destruction to Landlord. 8.02 Partial Damage. If the Premises are damaged by fire, tornado or other casualty, and rebuilding and repairs can be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, then this Lease will not terminate, but Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) to substantially the condition they were in before the damage. To the extent the Premises cannot be occupied (in whole or in part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably. If the casualty occurs during the last 18 months of the Term, Landlord will not be required to rebuild or repair the damage unless Tenant exercises Tenant's renewal option (if any) within 15 days after the date Landlord receives written notification of the occurrence of the damage. If the casualty occurs during the last 18 months of the Term and Tenant does not so exercise Tenant's renewal option, or if there is no renewal option in this Lease, Landlord may, at Landlord's option, terminate this Lease by delivering a written termination notice to Tenant, in which case the Rent will be abated for the unexpired portion of the Term, effective on the date Landlord received written notification of the damage. 8.03 Substantial or Total Destruction. If the Premises are substantially or totally destroyed by fire, tornado, or other casualty, or so damaged that rebuilding and repairs cannot reasonably be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, either Landlord or Tenant may terminate this Lease by promptly delivering a written termination notice to the other party, in which event the monthly installments of Rent will be abated for the unexpired portion of the Term, effective on the date of the damage or destruction. If neither party promptly terminates this Lease, Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (except that Tenant shall rebuild and repair Tenant's fixtures and improvements in the Premises). To the extent the Premises cannot be occupied (in whole or in part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably. ARTICLE NINE CONDEMNATION If, during the Term, all or a substantial part of the Premises are taken for any public or quasi - public use under any governmental law, ordinance or regulation or by right of eminent domain, or are conveyed to the condemning authority under threat of condemnation, this Lease will terminate and the monthly installments of Rent will be abated during the unexpired portion of the Term, effective on the date of the taking. If less than a substantial part of the Premises is taken for public or quasi - public use under any governmental law, ordinance or regulation, or by right of eminent domain, or is conveyed to the condemning authority under threat of condemnation, Landlord shall promptly, at Landlord's expense, restore and reconstruct the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) in order to make the Premises reasonably suitable for the Permitted Use. The Rent payable under this Lease during the unexpired portion of the Term will be adjusted equitably. If there is a taking of the Property that has a material, adverse effect on the operation of Tenant's business in the Premises, then the Rent will be adjusted equitably. Landlord and Tenant will each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceeding. The termination of this Lease will not affect the rights of the parties to those awards. COMMERCIAL LEASE AGREEMENT - Page 16 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zit)Looix.com City of Denton Exhibit 5 - Lease Agreement ARTICLE TEN ASSIGNMENT AND SUBLETTING Tenant may not assign this Lease or sublet the Premises or any portion thereof, without the prior written consent of Landlord, which consent will not be unreasonably withheld or delayed. Any assignment or subletting will be expressly subject to all terms and provisions of this Lease, including the provisions of Section 6.01 pertaining to the use of the Premises. In the event of any assignment or subletting, Tenant will remain fully liable for the full performance of all of Tenant's obligations under this Lease. Tenant may not assign Tenant's rights under this Lease or sublet the Premises without first obtaining a written agreement from the assignee or sublessee whereby the assignee or sublessee agrees to assume the obligations of Tenant under this Lease and to be bound by the terms of this Lease. If a Default occurs while the Premises is assigned or sublet, Landlord may, at Landlord's option, in addition to any other remedies provided in this Lease or by law, collect directly from the assignee or subtenant all rents becoming due under the terms of the assignment or subletting and apply the rents against any sums due to Landlord under this Lease. No direct collection by Landlord from any assignee or subtenant will release Tenant from Tenant's obligations under this Lease. ARTICLE ELEVEN DEFAULT AND REMEDIES 11.01 Default. Each of the following events is a default under this Lease (a "Default "): A. Failure of Tenant to pay any installment of the Rent or other sum payable to Landlord under this Lease on the date that it is due, and the continuance of that failure for a period of five days after Landlord delivers written notice of the failure to Tenant. This clause will not be construed to permit or allow a delay in paying Rent beyond the due date and will not affect Landlord's right to impose a Late Charge as permitted in Section 3.03; B. Failure of Tenant to comply with any term, condition or covenant of this Lease, other than the payment of Rent or other sum of money, and the continuance of that failure for a period of 30 days after Landlord delivers written notice of the failure to Tenant; C. Failure of Tenant or any guarantor of Tenant's obligations under this Lease to pay its debts as they become due or an admission in writing of inability to pay its debts, or the making of a general assignment for the benefit of creditors; D. The commencement by Tenant or any guarantor of Tenant's obligations under this Lease of any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; E. The commencement of any case, proceeding or other action against Tenant or any guarantor of Tenant's obligations under this Lease seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and Tenant or any guarantor: (i) fails to obtain a dismissal of such case, proceeding, or other action within 60 days of its commencement; or (ii) converts the case from one chapter of the Federal Bankruptcy Code to another chapter; or (iii) is the subject of an order of relief that is not fully stayed within seven business days after the entry thereof; and F. Vacancy or abandonment by Tenant of any substantial portion of the Premises or cessation of the use of the Premises for the purpose leased, and the continuance of that vacancy, COMMERCIAL LEASE AGREEMENT - Page 17 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziplooix.com City of Denton Exhibit 5 - Lease Agreement abandonment or cessation for a period of 30 days after Landlord delivers a written notice to Tenant. 11.02 Remedies. Upon the occurrence of any Default listed in Section 11 -01-, Landlord may pursue any one or more of the following remedies without any prior notice or demand. A. Landlord may terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises, Landlord may, without prejudice to any other remedy that Landlord may have for possession of the Premises or Rent in arrears, enter upon and take possession of the Premises and expel Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for any claim for damages due to the termination of this Lease or termination of possession. Tenant shall pay to Landlord on demand the amount of all Rent and loss and damage Landlord may suffer by reason of the termination or inability to relet the Premises up to the date of termination, in addition to any other liabilities that survive the termination of this Lease. B. Landlord may enter upon and take possession of the Premises, without terminating this Lease and without being liable for any claim for damages due to termination of possession, and expel Tenant and any other person who may be occupying the Premises or any part thereof. Landlord may relet the Premises and receive rent from the new occupant. Tenant agrees to pay to Landlord monthly, or on demand from time to time, any deficiency that may arise by reason of any such reletting. In determining the amount of the deficiency, professional service fees, reasonable attorneys' fees, court costs, remodeling expenses and other costs of reletting will be subtracted from the amount of rent received from the new occupant. C. Landlord may enter upon the Premises, without terminating this Lease and without being liable for any claim for damages due to such entry, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses that Landlord incurs in performing Tenant's obligations under this Lease, together with interest thereon at the rate of 12% per annum from the date spent until paid. D. Landlord may sue Tenant for damages for breach of this Lease after Tenant's Default and abandonment of the Premises, or after Landlord terminates Tenant's possession and Tenant vacates the Premises, in which case the measure of damages is the sum of: (i) the unpaid Rent up to the date of the abandonment or vacancy, plus (ii) the difference between the Rent for the remainder of the Term after abandonment or vacancy, and the fair market rental value of this Lease for the remainder of the Term after abandonment or vacancy, such difference to be discounted to present value at a rate equal to the rate of interest that is allowed by law in the State of Texas when the parties to a contract have not agreed on any particular rate of interest (or, in the absence of such law, at the rate of 6% per annum). Neither the enforcement or collection by Landlord of those amounts nor the payment by Tenant of those amounts will constitute a waiver by Landlord of any breach, existing or in the future, of any of the terms or provisions of this Lease by Tenant or a waiver of any rights or remedies that the Landlord may have with respect to any breach. E. In addition to the foregoing remedies, Landlord may change or modify the locks on the Premises if Tenant fails to pay the Rent when due. Landlord will not be obligated to provide another key to Tenant or allow Tenant to regain entry to the Premises unless and until Tenant pays Landlord all Rent that is delinquent. Tenant agrees that Landlord will not be liable for any damages resulting to the Tenant from the lockout. When Landlord changes or modifies the locks, Landlord or Landlord's agent shall post a written notice in accordance with Section 93.002 of the Texas Property Code, or its successor statute. Tenant may be subject to legal liability if Tenant or Tenant's representative tampers with any lock after the locks have been changed or modified. F. No re -entry or taking possession of the Premises by Landlord will be construed as an election to terminate this Lease, unless a written notice of that intention is given to Tenant. Notwithstanding any re- entry, taking possession or reletting, Landlord may, at any time COMMERCIAL LEASE AGREEMENT - Page 18 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 5 - Lease Agreement thereafter, elect to terminate this Lease for a previous Default. Pursuit of any of the foregoing remedies will not preclude pursuit of any other remedies provided by law, nor will pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any Rent due to Landlord under this Lease or of any damages accruing to Landlord by reason of the violation of any of the provisions in this Lease. Failure of Landlord to declare any Default immediately upon its occurrence, or failure to enforce one or more of Landlord's remedies, or forbearance by Landlord to enforce one or more of Landlord's remedies upon a Default, will not be deemed to constitute a waiver of any of Landlord's remedies for any Default. Pursuit of any one of the remedies will not preclude pursuit by Landlord of any of the other remedies provided in this Lease. The loss or damage that Landlord may suffer by reason of a Default by Tenant under this Lease, or the deficiency from any reletting, will include the expense of taking possession and any repairs performed by Landlord after a Default by Tenant. If Landlord terminates this Lease at any time for any Default, in addition to other Landlord's remedies, Landlord may recover from Tenant all damages Landlord may incur by reason of the Default, including the cost of recovering the Premises and the Rent then remaining unpaid. G. Nothing in this Lease will be construed as imposing any duty upon Landlord to relet the Premises. Landlord will have no duty to mitigate Landlord's damages except as required by applicable law. Any duty imposed by law on Landlord to mitigate damages after a Default by Tenant will be satisfied if Landlord undertakes to lease the Premises to another tenant (a "Substitute Tenant ") in accordance with the following criteria: (1) Landlord will have no obligation to solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant; (2) Landlord will not be obligated to lease or show the Premises on a priority basis, or offer the Premises to a prospective tenant when other space in the Property suitable for the prospective tenant's use is (or soon will be) available; (3) Landlord will not be obligated to lease the Premises to a Substitute Tenant for an amount less than the current fair market rent then prevailing for similar uses in comparable buildings in the same market area as the Property, nor will Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlord's then current leasing policies for comparable space in the Property; (4) Landlord will not be obligated to enter into a lease with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the Property; (ii) adversely affect the reputation of the Property; or (iii) be incompatible with other uses of the Property. (5) Landlord will not be obligated to enter into a lease with a Substitute Tenant that does not have, in Landlord's reasonable opinion, sufficient financial resources to pay the Rent under the new lease and operate the Premises in a first class manner; and (6) Landlord will not be required to spend any amount of money to alter, remodel, or otherwise make the Premises suitable for use by a proposed Substitute Tenant unless: (i) Tenant pays any such sum to Landlord in advance of Landlord's execution of a lease with the Substitute Tenant (which payment will not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant's Default under this Lease); or COMMERCIAL LEASE AGREEMENT - Page 19 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement (ii) Landlord, in Landlord's reasonable discretion, determines that any such expenditure is financially justified in connection with entering into a lease with the Substitute Tenant. H. No right or remedy of Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy will be cumulative and in addition to any other right or remedy now or hereafter existing under this Lease, at law, in equity or by statute. Landlord will not be liable for any damages resulting to Tenant from any right or remedy exercised by Landlord, regardless of the cause, even if it is caused by the sole, joint or concurrent negligence of Landlord. 11.03 Notice of Default. Tenant shall give written notice of any failure by Landlord to perform any of Landlord's obligations under this Lease to Landlord and to any ground lessor, mortgagee or beneficiary under any deed of trust encumbering the Premises whose name and address have been furnished to Tenant in writing. Landlord will not be in default under this Lease unless Landlord (or the ground lessor, mortgagee or beneficiary) fails to cure the nonperformance within 30 days after receipt of Tenant's notice. However, if the nonperformance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30 -day period and is thereafter diligently pursued to completion. 11.04 Limitation of Landlord's Liability. As used in this Lease, the term "Landlord" means only the current owner or owners of the fee title to the Premises, or the leasehold estate under a ground lease of the Premises, at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such title or estate. Any Landlord who transfers its title, estate or other interest is relieved of all liability with respect to the obligations of Landlord under this Lease accruing on or after the date of the transfer, and Tenant agrees to recognize the transferee as Landlord under this Lease. However, each Landlord shall deliver to its transferee the Security Deposit held by Landlord, to the extent the Security Deposit has not then been applied under the terms of this Lease. ARTICLE TWELVE LANDLORD'S CONTRACTUAL LIEN In addition to the statutory Landlord's lien, Tenant hereby grants to Landlord a security interest to secure payment of all Rent and other sums of money becoming due under this Lease from Tenant, upon all inventory, goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated in or on the Premises, together with the proceeds from the sale thereof. Tenant may not remove such property without the consent of Landlord until all Rent in arrears and other sums then due to Landlord under this Lease have been paid. Upon the occurrence of a Default, Landlord may, in addition to any other remedies provided in this Lease or by law, enter upon the Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated in or on the Premises without liability for trespass or conversion, and sell the property at public or private sales, with or without having the property at the sale, after giving Tenant reasonable notice of the time and place of any such sale. Unless otherwise required by law, notice to Tenant of the sale will be deemed sufficient if given in the manner prescribed in this Lease at least 10 days before the time of the sale. Any public sale made under this Article will be deemed to have been conducted in a commercially reasonable manner if held on the Premises or where the property is located, after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county where the Premises is located for five consecutive days before the date of the sale. Landlord or its assigns may purchase at a public sale and, unless prohibited by law, at a private sale. The proceeds from any disposition pursuant to this Article, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys' fees and expenses), will be applied as a credit against the indebtedness secured by the security interest granted in this Article. Any surplus will be paid to Tenant or as otherwise required by law, and Tenant shall promptly pay any deficiencies. Landlord is authorized to file a financing statement to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Texas Business and Commerce Code in effect in the State of Texas. Provided Tenant is not in default under any of the COMMERCIAL LEASE AGREEMENT - Page 20 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLogix.com City of Denton Exhibit 5 - Lease Agreement terms of this Lease, upon written request by Tenant, Landlord shall deliver a written subordination of Landlord's statutory and contractual liens to any liens and security interests securing any institutional third party financing of Tenant. Landlord shall not unreasonably withhold or delay the delivery of Landlord's written subordination. ARTICLE THIRTEEN PROTECTION OF LENDERS 13.01 Subordination and Attornment. Landlord may subordinate this Lease to any future ground Lease, deed of trust or mortgage encumbering the Premises, and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord's right to subordinate is subject to Landlord providing Tenant with a written Subordination, Non - disturbance and Attornment Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession of the Premises during the Term will not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and is not otherwise in default, in which case Tenant shall attorn to the transferee of or successor to Landlord's interest in the Premises and recognize the transferee or successor as Landlord under this Lease. Tenant's rights under this Lease are subordinate to any existing ground lease, deed of trust or mortgage encumbering the Premises. However, if any ground lessor, beneficiary or mortgagee elects to have this Lease be superior to its ground lease, deed of trust or mortgage and gives Tenant written notice thereof, then this Lease will be deemed superior to the ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof. 13.02 Signing of Documents. Tenant shall sign and deliver any document that may be requested to evidence any attornment or subordination, or any agreement to attorn or subordinate, as long as the document is consistent with the provisions of Section 13.01. If Tenant fails to do so within 10 days after a written request, Tenant hereby irrevocably appoints Landlord as Tenant's attorney -in -fact to execute and deliver the attornment or subordination document. 13.03 Estoppel Certificates. A. Upon Landlord's written request, Tenant shall execute and deliver to Landlord a written statement (an "Estoppel Certificate ") certifying: (1) whether Tenant is an assignee or subtenant; (2) the Expiration Date of this Lease; (3) the number of renewal options under this Lease, if any, and the total period of time covered by the renewal options; (4) that none of the terms or provisions of this Lease have been changed since the original execution of this Lease, except as shown on any attached amendments or modifications; (5) that no default exists under the terms of this Lease by either Landlord or Tenant; (6) that Tenant has no claim against Landlord under this Lease and has no defense or right of offset against collection of Rent or other charges accruing under this Lease; (7) the amount and payment date of the last payment of Rent, the period of time covered by that payment, and the amount of any rental payments made in advance; (8) the amount of any Security Deposit and other deposits, if any; and (9) the identity and address of any guarantor of this Lease. Tenant shall deliver the statement to Landlord within 10 days after Landlord's request. Landlord may forward any such statement to any prospective purchaser or lender of the Premises. The purchaser or lender may rely conclusively upon the statement as true and correct. B. If Tenant does not deliver the Estoppel Certificate to Landlord within the 10 -day period, Landlord, and any prospective purchaser or lender, may conclusively presume and rely upon the following facts: (1) that the terms and provisions of this Lease have not been COMMERCIAL LEASE AGREEMENT - Page 21 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Loaix.com City of Denton Exhibit 5 - Lease Agreement changed except as otherwise represented by Landlord; (2) that this Lease has not been terminated except as otherwise represented by Landlord; (3) that not more than one monthly installment of Base Rent and other charges have been paid in advance; (4) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent; and (5) that Landlord is not in default under this Lease, In such event, Tenant will be estopped from denying the truth of the presumed facts. C. Also, if Tenant does not deliver the Estoppel Certificate to Landlord within the 10 -day period, Landlord may deliver a written notice to Tenant stating that Tenant must deliver an Estoppel Certificate under this Section within five days after Tenant receives the notice. If Tenant does not deliver an Estoppel Certificate to Landlord within five days after Tenant receives the notice, then Tenant's failure to deliver an Estoppel Certificate will constitute a Default under this Lease, notwithstanding any longer period of time under Section 11.01 that Tenant would otherwise be allowed to cure a failure before the failure would become a Default. 13:84 Tenant's ARTICLE FOURTEEN ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY 14.01 Tenant's Compliance with Environmental Laws. Tenant, at Tenant's expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of Federal, State, county and municipal authorities pertaining to Tenant's use of the Property and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials (as defined in Section 14.05), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Landlord or Tenant with respect to the use or occupancy of the Property. 14.02 Tenant's Indemnification. Tenant shall not cause or permit any Hazardous Materials to be % brought upon, kept or used in or about the Property by Tenant, or Tenant's ages employees, without the prior written consent of Landlord. if the presence of Hazardous Materials on the Property caused or permitted by Tenant results in contamination of the Property of , then bin, Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, " J d damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value � � of 114,t of the Property, damages for the loss or restriction on use of rentable or unusable space or of any amenity or appurtenance of the Property, damages arising from any adverse impact on marketing of �VN of building space or land area, sums paid in settlement of claims, reasonable attorneys' fees, court costs, 0 consultant fees and expert fees) that arise during or after the Term as a result of the contamination. ! ° This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean -up, remedial work, removal or restoration work ���� required by any Federal, State or local government agency because of Hazardous Materials present in the soil or ground water on or under the Property. Without limiting the foregoing, if the presence of any Hazardous Mat rials by Tenant results in ny contammation of the Property, Tenant shall promptly take all actions at Tenant's sole expense as are necessary to return the Property to the condition existing prior to the introduction of any such Hazardous Materials, provided that Landlord's approval of such actions is first obtained. COMMERCIAL LEASE AGREEMENT - Page 22 OO NTCAR 2014 - Form No. 2 (312014) Produced vAth zlpForm®by zipLogtx 18070 rtteon Wo Road, Fraser, Michigan 40026 v zfoLOglx.com City of Denton Exhibit 5 - Lease Agreement 14.03 Landlord's Representations. Landlord represents, to the best of Landlord's actual knowledge, that: (i) any handling, transportation, storage, treatment or usage of Hazardous Materials that has occurred on the Property to date has been in compliance with all applicable Federal, State, and local laws, regulations and ordinances; and (ii) no leak, spill, release, discharge, emission or disposal of Hazardous Materials has occurred on the Property to date and that the soil or groundwater on or under the Property is free of Hazardous Materials as of the Commencement Date, unless expressly disclosed by Landlord to Tenant in writing. 14.04 Landlord's Indemnification. Landlord hereby indemnifies, defends and holds Tenant harmless from any claims, judgments, damages, penalties, fines, costs, liabilities, (including sums paid in settlements of claims) or loss, including, without limitation, reasonable attorneys' fees, court costs, consultant fees, and expert fees, which arise during or after the Term of this Lease from or in connection with the presence or suspected presence of Hazardous Materials in the soil or groundwater on or under the Property, unless the Hazardous Material is released by Tenant or is present as a result of the negligence or willful conduct of Tenant. Without limiting the generality of the foregoing, the indemnification provided by this Section will specifically cover costs incurred in connection with any investigation of site conditions or any clean -up, remedial work, removal or restoration work required by any Federal, State or local governmental authority. 14.05 Definition. For purposes of this Lease, the term "Hazardous Materials" means any one or more pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent or oil as defined in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Clean Water Act, as amended, the Water Pollution Control Act, as amended, the Solid Waste Disposal Act, as amended, or any other Federal, State or local environmental law, regulation, ordinance, or rule, whether existing as of the date of this Lease or subsequently enacted. 14.06 Survival. The representations and indemnities contained in this Article Fourteen will survive the expiration or termination of this Lease. ARTICLE FIFTEEN PROFESSIONAL SERVICE FEES 15.01 Amount and Manner of Payment. Professional service Fees due to the Principal Broker and Cooperating Broker (together, the "Brokers ") will be calculated and paid as follows: A. Lump Sum. Unless the box for Section 15.0.1..B is checked in Section 1.14A, then Landlord agrees to pay to each of the Brokers a lump sum professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to: (i) the percentages stated in Section 1.14A of the total Base Rent to become due to Landlord during the Term, if the blanks for percentages are completed; or (ii) the amounts per square foot in the Premises stated in Section 1.14A, if the blanks for amounts per square foot are completed. The Fees will be paid to the Brokers (i) one -half on the date of final execution of this Lease, and (ii) the balance on the Commencement Date of this Lease. B. Monthly. If the box for this Section 15.01B is checked in Section 1.14A, then Landlord agrees to pay to each of the Brokers a monthly professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to the percentages stated in Section 1.14A of each monthly Base Rent payment at the time the payment is due. 15.02 Payments on Renewal, Expansion or New Lease. Subject to the termination date stated in this Section below, if Tenant or Tenant's successors or assigns: (a) exercises any right or option to renew or extend the Term (whether contained in this Lease or in any amendment to this Lease) or enters into a new lease covering the Premises, a portion of the Premises, or the Premises and additional space; or (b) enters into any new lease, expansion or other rental agreement as to any premises located on or constituting all or part of any real property owned by Landlord adjacent to the Property, then Landlord shall pay to each of the Brokers an additional Fee covering the full period of COMMERCIAL LEASE AGREEMENT - Page 23 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziolooix.com City of Denton Exhibit 5 - Lease Agreement the renewal, extension, new lease, expansion or other rental agreement. The additional Fees will be due on the date of exercise of a renewal option, or the date of execution in the case of a new lease, expansion or other agreement. The additional Fees will be computed and paid under Section 15.01 A or Section 15.01 B above (whichever has been made applicable under Section 1.14), as if a new lease had been made for such period of time. The Brokers' right to receive these additional Fees will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended. 15.03 Payments on Sale. Subject to the termination date stated in this Section below, if Tenant or Tenant's successors or assigns, purchases the Premises pursuant to a purchase option contained in this Lease (or in any amendment to this Lease or any other agreement) or otherwise purchases the Premises, the Property or any portion of either the Premises or the Property, then Landlord shall pay to each of the Brokers a Fee equal to the percentages stated in Section 1.148 of the purchase price, payable in Good Funds at the closing. Upon the closing of a sale to Tenant, any monthly lease Fees will terminate upon payment of the Fee on the sale. The Brokers' right to receive the Fees set forth in this Section 15.03 will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended. 15.04 Other Brokers. Both Landlord and Tenant represent to the other party that they have had no dealings with any person, firm or agent in the negotiation of this Lease other than the Broker(s) named in this Lease, and no other broker, agent, person, firm or entity other than the Broker(s) is entitled to any commission or fee in connection with this Lease. 15.05 Landlord's Liability. Landlord will be liable for payment of all Fees solely to the Brokers, and Landlord will not be obligated to pay any claims by any undisclosed broker. The Principal Broker may pay a portion of the Fee to any Cooperating Broker pursuant to a separate agreement between the Brokers. 15.06 Joint Liability of Tenant. If Tenant enters into any new lease, extension, renewal, expansion, or other agreement to rent, occupy, or purchase any property described in Section 15.02 or Section 15.03 within the time specified in those Sections, the negotiations must be communicated through the Principal Broker (which may be done through the Cooperating Broker), otherwise Tenant will be jointly and severally liable with Landlord for any payments due or to become due to the Principal Broker. 15.07 Assumption on Sale. In the event of a sale or other transfer of the Premises by Landlord, Landlord shall assign this Lease to the purchaser or other transferee, and obtain from the purchaser or other transferee an Assumption Agreement in recordable form whereby the purchaser or other transferee agrees to pay the Brokers all Fees payable under this Lease. Landlord shall deliver a fully executed original counterpart of the Assumption Agreement to each of the Brokers upon the closing of the sale or other transfer of the Premises. Landlord will be released from personal liability for subsequent payments of Fees payable under this Lease only upon the delivery of the Assumption Agreement to the Brokers. 15.08 Termination. Landlord and Tenant agree that the Brokers are third party beneficiaries of this Lease with respect to the Fees, and that no change may be made by Landlord or Tenant as to the time of payment, amount of payment or the conditions for payment of the Fees without the written consent of the Brokers. The termination of this Lease by the mutual agreement of Landlord and Tenant will not affect the right of the Brokers to continue to receive the Fees agreed to be paid under this Lease, just as if Tenant had continued to occupy the Premises and had paid the Rent during the entire Term. Amendment or termination of this Lease under Article Eight (Damage or Destruction) and Article Nine (Condemnation) will not amend or terminate the Brokers' right to collect the Fees. 15.09 Intermediary Relationship. A. If either of the Brokers has indicated in Section 1.12 or Section 1.13 or otherwise that they are acting as an intermediary, then Landlord and Tenant consent to the intermediary relationship, authorize such Broker or Brokers to act as an intermediary between Landlord and Tenant in connection with this Lease, and acknowledge that the source of any expected compensation to the Brokers will be Landlord, and the Brokers may also be paid a fee by Tenant. A broker, and any broker or salesperson appointed to communicate COMMERCIAL LEASE AGREEMENT - Page 24 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziDLooix.com City of Denton Exhibit 5 - Lease Agreement with and carry out instructions of one party, who acts as an intermediary is required to act fairly and impartially, and may not: (1) disclose to Tenant that Landlord will accept a rent less than the asking rent, unless otherwise instructed in a separate writing by Landlord; (2) disclose to Landlord that Tenant will pay a rent greater than the rental submitted in a written offer to Landlord, unless otherwise instructed in a separate writing by Tenant; (3) disclose any confidential information, or any information a party specifically instructs the real estate broker or salesperson in writing not to disclose, unless: (a) the broker or salesperson is otherwise instructed in a separate writing by the respective party; (b) the broker or salesperson is required to disclose the information by the Texas Real Estate License Act or a court order; or (c) the information materially relates to the condition of the property; (4) treat a party to the transaction dishonestly; or (5) violate the Texas Real Estate License Act. B. Appointments. Each Broker is authorized to appoint, by providing written notice to the parties, one or more license holders associated with the Broker to communicate with and carry out instructions of one party, and one or more other license holders associated with the Broker to communicate with and carry out instructions of the other party. An appointed license holder may provide opinions and advice during negotiations to the party to whom the license holder is appointed. ARTICLE SIXTEEN MISCELLANEOUS AND ADDITIONAL PROVISIONS 16.01 Disclosure. Landlord and Tenant understand that a real estate broker is not an expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture, the TABA, or the ADA. The Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers do not investigate a property's compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of a property and its construction, or that relate to its acquisition. If the Brokers provide names of consultants or sources for advice or assistance, Tenant acknowledges that the Brokers do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired or leased. Furthermore, the Brokers do not warrant that the Landlord will disclose any or all property defects, although the Brokers will disclose to Tenant any actual knowledge possessed by Brokers regarding defects of the Premises and the Property. In this regard, Tenant agrees to make all necessary and appropriate inquiries and to use diligence in investigating the Premises and the Property before signing this Lease. Tenant acknowledges and agrees that neither the Principal Broker nor any Cooperating Broker has made any representation to Tenant with respect to the condition of the Premises, and that Tenant is relying exclusively upon Tenant's own investigations and the representations of Landlord, if any, with respect to the condition of the Premises. Landlord and Tenant agree to hold the Brokers harmless from any and all damages, claims, costs and expenses resulting from or related to Landlord's furnishing to the Brokers any inaccurate information with respect to the Premises, or Landlord's concealing any material information with respect to the Premises. Landlord and Tenant hereby agree to indemnify and defend the Brokers against any and all liabilities, claims, debts, damages, costs, or expenses, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of or in any way connected to (a) representations concerning matters properly the subject of advice by experts; or (b) any dispute directly between Landlord and Tenant regarding this Lease. In addition, to the extent permitted by applicable law, the Brokers' COMMERCIAL LEASE AGREEMENT - Page 25 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement liability for errors, omissions, or negligence is limited to the return of the Fee, if any, paid to the Brokers pursuant to this Lease. 16.02 Force Majeure. If performance by Landlord of any term, condition or covenant in this Lease is delayed or prevented by any Act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot, flood, or any other cause not within the control of Landlord, the period for performance of the term, condition or covenant will be extended for a period equal to the period Landlord is so delayed or prevented. 16.03 Interpretation. The captions of the Articles or Sections of this Lease are to assist the parties in reading this Lease and are not part of the terms or provisions of this Lease. Whenever required by the context of this Lease, the singular will include the plural and the plural will include the singular, and the masculine, feminine and neuter genders will each include the other. 16.04 Waivers. Any waivers of any provisions of this Lease must be in writing and signed by the waiving party. Landlord's delay or failure to enforce any provisions of this Lease or Landlord's acceptance of late installments of Rent will not be a waiver and will not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a check from Tenant or in a letter accompanying a check will be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or endorse the check without being bound to the conditions of any such statement. 16.05 Severability. A determination by a court of competent jurisdiction that any provision of this Lease is invalid or unenforceable will not invalidate the remainder of that provision or any other provision of this Lease, which will remain in full force and effect. 16.06 Joint and Several Liability. All parties signing this Lease as Tenant will be jointly and severally liable for all obligations of Tenant. Tenant will be responsible for the conduct, acts and omissions of Tenant's agents, employees, customers, contractors, invitees, agents, successors or others using the Premises with Tenant's express or implied permission. 16.07 Amendments or Modifications. This Lease is the only agreement between the parties pertaining to the lease of the Premises and no other agreements are effective unless made a part of this Lease. All amendments to this Lease must be in writing and signed by all parties. 16.08 Notices. All notices and other communications required or permitted under this Lease must be in writing and will be deemed delivered, whether actually received or not, on the earlier of: (i) actual receipt if delivered in person or by messenger with evidence of delivery; or (ii) receipt of an electronic facsimile transmission ( "Fax ") with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified in Article One of this Lease, if any. Notices delivered by mail must be deposited in the U.S. Postal Service, certified mail, return receipt requested, postage prepaid, and properly addressed to the intended recipient as set forth in Article One. Notices sent by any other means will be deemed delivered when actually received, with proof of delivery. After possession of the Premises by Tenant, Tenant's address for notice purposes will be the address of the Premises unless Tenant notifies Landlord in writing of a different address to be used for that purpose. Any party may change its address for notice by delivering written notice of its new address to all other parties in the manner set forth above. Copies of all notices should also be delivered to the Brokers, but failure to notify the Brokers will not cause an otherwise properly delivered notice to be ineffective. Also, copies of all notices must also be delivered to the following persons [if the blanks have been completed]: Copies of notices to Landlord are to be delivered to: Rail Yard Partners LTD Address: 525 S. Loop 288, Suite 105 Denton TX 76205 Telephone: Email: Fax: COMMERCIAL LEASE AGREEMENT - Page 26 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLooix.com City of Denton Exhibit 5 - Lease Agreement Copies of notices to Tenant are to be delivered to: City of Denton Address: 215 E. McKinney Street Denton TX 76201 Telephone: (940) 349 -8200 Fax: Email: ❑ Landlord also consents to receive any notices by e -mail. [Check the box, if applicable.] ❑ Tenant also consents to receive any notices by e -mail. [Check the box, if applicable.] 16.09 Attorneys' Fees. If, on account of any breach or default by any party to this Lease in its obligations to any other party to this Lease (including, but not limited to, the Brokers), it becomes necessary for a party to employ an attorney to enforce or defend any of its rights or remedies under this Lease, the non - prevailing party agrees to pay the prevailing party its reasonable attorneys' fees and court costs, if any, whether or not suit is instituted in connection with the enforcement or defense. 16.10 Venue. All obligations under this Lease, including, but not limited to, the payment of Fees to the Brokers, will be performed and payable in the county in which the Property is located. The laws of the State of Texas will govern this Lease. 16.11 Survival. All obligations of any party to this Lease that are not fulfilled at the expiration or the termination of this Lease will survive such expiration or termination as continuing obligations of the party. 16.12 Binding Effect. This Lease will inure to the benefit of, and be binding upon, each of the parties to this Lease and their respective heirs, representatives, successors and assigns. However, Landlord will not have any obligation to Tenant's successors or assigns unless the rights or interests of the successors or assigns are acquired in accordance with the terms of this Lease. 16.13 Right to Claim a Lien. If a commission agreement or other agreement to pay Fees to the Brokers is not included in this Lease, then be advised that pursuant to Chapter 62 of the Texas Property Code, each Broker hereby discloses the Broker's right to claim a lien based on a separate written commission agreement or other agreement to pay Fees to the Broker, and this disclosure is incorporated in the commission agreement or other agreement to pay Fees. 16.14 Patriot Act Representation. Landlord and Tenant each represent to the other that: (1) its property interests are not blocked by Executive Order No. 13224, 66 Fed. Reg. 49079; (2) it is not a person listed on the Specially Designated Nationals and Blocked Persons list of the Office of Foreign Assets Control of the United States Department of the Treasury; and (3) it is not acting for or on behalf of any person on that list. 16.15 Counterparts. This Lease may be executed in a number of identical counterparts, and all counterparts will be construed together as one agreement. 16.16 Offer. The execution of this Lease by the first party to do so constitutes an offer to lease the Premises. Unless this Lease is signed by the other party and a fully executed copy is delivered to the first party by the earlier of this date or the date that is 10 days after the date of execution by the first party, such offer to lease will be deemed automatically withdrawn. Any acceptance of an offer that has been withdrawn will only be effective if the party that withdrew the offer subsequently agrees to the acceptance either in writing or by course of conduct. COMMERCIAL LEASE AGREEMENT - Page 27 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 5 - Lease Agreement 16.17 Additional Provisions. Landlord and Tenant agree to any provisions set forth on the attached Addenda (if any) and the following additional provisions (if any): 1. In addition to the rent stated in Section 1.06, the City of Denton has entered into an Economic Development Program Grant Agreement under which the City will grant $76,000 per year for the term of this lease, subject to compliance with the Terms and Conditions of the Grant Agreement (Exhibit D) . 2. Landlord acknowledges that the programming use for the premises will involve a 3rd party organization that will manage the facility and sublease the space to other office tenants in a co- working environment. This use or agreement with a managing entity will not be considered a sublease that will require Landlord approval as stated in Article 10. COMMERCIAL LEASE AGREEMENT - Page 28 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLooix.com City of Denton Exhibit 5 - Lease Agreement 16.18 Consult an Attorney. This Lease is an enforceable, legally binding agreement. Read it carefully. The Brokers involved in the negotiation of this Lease cannot give you legal advice. Landlord and Tenant acknowledge that they have been advised by the Brokers to have this Lease reviewed by competent legal counsel of their choice before signing this Lease. By executing this Lease, Landlord and Tenant each agree to the provisions contained in this Lease. This Lease has been executed as of the Effective Date (as defined in Section 1.01). LANDLORD: LANDLORD: Rail Yard Partners LTD By [Signature]: Name: Title: Date of Execution: TENANT: City of Denton By [Signature]: Name:George C. Campbell Title: City Manager Date of Execution: PRINCIPAL BROKER: Axis Realty Group By [Signature]: Name:Alex Payne Title: Address: Broker's License No.: Tax ID No.: By [Signature]: _ Name: Title: Date of Execution: TENANT: Approved as to form: By [Signature]: Name:Anita Burgess Title: City Attorney Date of Execution: COOPERATING BROKER: By [Signature]: Name: Title: Address: Broker's License No.: Tax ID No.: PERMISSION TO USE: This form is provided for- the use of members of the North Texas Commercial Association of REALTORS @, Inc. ( "NTCAR "), members of the North Texas Commercial Association of Real Estate Professionals, Inc. and other licensed users of an NTCAR electronic forms system. Permission is given to make limited copies of the current version of this form for use in a particular Texas real estate t•dnsaction. Please contact the NTCAR office to confirm that you are using the euwent version of this form. Mass production, or reproduction for resale, is not allowed without express permission. Any changes to this form must be made in a manner that is obvious. If any words are deleted, they must be left in the form with a line drawn through them. If changes are made that are not obvious, the person who made the change could be subject to a claim of fizaud or misrepresentation for passing off an altered form as if it were the genuine NTCAR form. COMMERCIAL LEASE AGREEMENT - Page 29 ONTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Loaix.com City of Denton Exhibit 5 - Lease Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "A" TO LEASE RENEWAL OPTIONS Address of the Premises: 608 E Hickory St, Ste 128, Denton, TX 76201 1. Option to Extend the Term. Landlord grants to Tenant 2 option(s) (each an "Option ") to extend the Term for an additional term of 60 months each (the "Extension "), on the same terms, conditions and covenants set forth in this Lease, except as provided below. Each Option may be exercised only by written notice delivered to the Landlord no earlier than One Hundred Eighty ( 180 ) days before, and no later than One Hundred Twenty ( 120 ) days before, the expiration of the Term or the preceding Extension of the Term, whichever is applicable. If Tenant fails to deliver to Landlord a written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options will lapse, and there will be no further right to extend the Term. Each Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease. The Options are personal to Tenant and may not be exercised by an assignee or subtenant without Landlord's written consent. 2. Calculation of Rent. The Base Rent during the Extension(s) will be determined by one of the following methods [check one]: FA. Fair Market Rental. The Base Rent during the Extension will be the Fair Market Rental determined as follows: a. The "Fair Market Rental" of the Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of Premises comparable to the Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant's intention to elect to exercise the renewal Option, Landlord shall, within 180 days thereafter, notify Tenant in writing of Landlord's proposed Fair Market Rental amount, and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landlord's proposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within 120 days after receipt of Landlord's notice will be deemed Tenant's acceptance of Landlord's proposed Fair Market Rental amount. b. If Landlord and Tenant have not been able to agree on the Fair Market Rental amount within 40 days following the exercise of the Option, the Fair Market Rental for the Extension will be determined by the following appraisal process. Landlord and Tenant shall endeavor in good faith to select a single Appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. If Landlord and Tenant are able to agree upon and select a single Appraiser, that Appraiser will determine the Fair Market Rental for the Extension. If Landlord and Tenant are unable to agree upon a single Appraiser within days after the end of the 40 -day period, each will then appoint one Appraiser by written notice to the other, given within days after the end of the 40 -day period. Within five business days after the two Appraisers are appointed, the two Appraisers will appoint a third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time period, the single Appraiser appointed will determine the Fair Market Rental amount of the Premises. Each party will bear the cost of the appraiser appointed by it and the parties will share equally the cost of the third appraiser. The Fair Market Rental of the Premises will be the average of two of the three appraisals that are closest in amount, and the third appraisal will be disregarded. ADDENDUM "A" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940,891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLogix.com Exhibit 5 - Lease Agreement c. In no event will the Base Rent be reduced for any Extension, regardless of the Fair Market Rental determined by any appraisal. If the Fair Market Rental is not determined before the commencement of the Extension, then Tenant shall continue to pay to Landlord the Base Rent applicable to the Premises immediately before the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord the difference between the Base Rent actually paid by Tenant to Landlord and the new Base Rent. ❑ B. Consumer Price Index Adjustment. The monthly Base Rent during the Extension will be determined by multiplying the monthly installment of Base Rent during the last month of the Term by a fraction determined as follows: a. The numerator will be the Latest Index that means either [check one]: ❑ (1) the Index published for the nearest calendar month preceding the first day of the Extension, or ❑ (2) the Index for the month of Extension. preceding the first day of the b. The denominator will be the Initial Index that means either [check one]: ❑ (1) the Index published for the nearest calendar month preceding the Commencement Date, or ❑ (2) the Index for the month of Date. preceding the Commencement [If no blanks are filled in above, the choice (1) including the phrase "the nearest calendar month preceding" will apply. If the Index is not yet published for the nearest calendar month preceding the applicable date, then "the nearest calendar month" means the first month preceding the applicable date for which the Index is published]. c. The Index means the Consumer Price Index (CPI) for All Urban Consumers (All Items) U.S. City Average (unless this box is checked ❑ in which case the CPI for the Dallas /Fort Worth Consolidated Metropolitan Statistical Area will be used) published by the U. S. Department of Labor, Bureau of Labor Statistics (Base Index of 1982 -84 =100). If the Index is discontinued or revised, the new index or computation that replaces the Index will be used in order to obtain substantially the same result as would have been obtained if it had not been discontinued or revised. If such computation would reduce the Rent for the particular Extension, it will be disregarded, and the Rent during the immediately preceding period will apply instead. ❑ C. Fixed Rental Adjustments. The monthly installments of Base Rent during the Extension(s) will be increased beginning on the following dates to these amounts: Date: Amount: $ Date: Amount: $ Date: Amount: $ Date: Amount: $ ADDENDUM "A" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/14) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www,zir)Logix.com City of Denton Exhibit 5 - Lease Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "B" TO LEASE CONSTRUCTION OF IMPROVEMENTS BY LANDLORD Address of the Premises: 608 E Hickory St, Ste 128, Denton, Tx 76201 1. Plans. Landlord agrees to construct (or complete) improvements to the Premises in accordance with plans and specifications (the "Plans ") to be promptly prepared by Landlord and delivered to Tenant. If Tenant does not respond to the request for approval of the Plans within five days after Tenant's receipt of the Plans, Tenant will be deemed to have approved the Plans. Upon approval by Tenant, two or more sets of the Plans will be signed by both parties, with one signed set retained by each party. Changes to the Plans may be made only by written amendments signed by both parties. 2. Construction of Improvements. Upon approval of the Plans and the cost of construction, Landlord shall promptly begin construction and pursue the construction to its completion with reasonable diligence and in a good and workmanlike manner. 3. Estimated Completion Date. It is estimated by Landlord that the improvements specified in the Plans will be completed by March 1 2016 (the "Estimated Completion Date "). 4. Notice of Completion. Landlord shall deliver a written notice to Tenant that the improvements have been completed in accordance with the Plans, specifying the date (the "Date of Completion ") the improvements were completed, within two days after the Date of Completion. Tenant shall then promptly inspect the improvements, and if they have in fact been completed in accordance with the Plans, then the Term will begin upon the Date of Completion or on the Commencement Date, whichever is later. 5. Objections. If Tenant reasonably determines that the improvements have not been completed in accordance with the Plans, Tenant may deliver a written notice to Landlord specifying the incomplete items. If Tenant does not, within 10 days after Landlord's notice of completion, deliver such a written notice to Landlord, then Tenant will be deemed to have approved the improvements as constructed, and the Date of Completion stated in Landlord's notice will be the Date of Completion. If the improvements have not in fact been completed in accordance with the Plans, and Tenant has delivered to Landlord a written notice specifying the incomplete items, then Landlord shall promptly proceed to finish the incomplete items, and the Term will begin upon the date the items are In fact complete. 6. Substantial Completion. Completion, as used in this Addendum, means Substantial Completion. "Substantial Completion" will be deemed to have occurred when (i) a Certificate of Occupancy is issued by the local municipal authorities that have jurisdiction over the Premises, and (ii) the construction is sufficiently complete In accordance with the Plans so that Tenant is able to occupy the Premises for the Permitted Use, except for minor "punch list" items remaining to be completed. 7. Letter of Acceptance. Upon Substantial Completion of the improvements to the Premises, Tenant agrees to execute and deliver to Landlord, with a copy to the Principal Broker, a letter (the "Letter of Acceptance ") addressed to Landlord and signed by Tenant (or Tenant's authorized representative) acknowledging: (i) that construction has been completed in accordance with the Plans; (ii) acceptance of the improvements (subject to "punch list" items to be completed); (iii) the Date of Completion, and (iv) the Commencement Date of the Term. 8. Taking of Possession. The taking of possession of the Premises by Tenant will be deemed to be acknowledgment by Tenant that construction has been completed in accordance with Plans (except for any latent defects and "punch list" items) and that the Term has begun as of the Date of Completion, regardless of whether a Certificate of Occupancy has been issued or Tenant has delivered a Letter of Acceptance. ADDENDUM T" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com Exhibit 5 - Lease Agreement 9. Failure to Complete. If the improvements have not been completed in accordance with the Plans by the Estimated Completion Date, or by such date as extended by application of Section 16.02 (Force Maieure), Tenant may give Landlord a written notice of Tenant's Intention to terminate as of a certain date specified by Tenant in the notice (the "Termination Date ") if such improvements have not been completed by the Termination Date. The notice must be given to Landlord not less than 20 days before the Termination Date. If the improvements have not been completed by the Termination Date, then this Lease will terminate, with no further liability of one party to the other, unless the Termination Date is extended by Tenant in writing. If Landlord is able to cause Substantial Completion of the improvements to occur before the Termination Date, then this Lease will not terminate. 10. Finish -Out Allowance. Landlord shall pay the cost of construction under this Addendum in an amount not to exceed $ 552 960.00 (the "Landlord's Cost "). If an Addendum for Construction of Improvements by Tenant is also attached to this Lease, then Landlord may also provide an Allowance (as defined in that Addendum) to be applied to the cost of construction in that Addendum. Tenant shall pay any costs of construction in excess of the Landlord's Cost and any Allowance. ADDENDUM "B" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 5 - Lease Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "G" TO LEASE RULES AND REGULATIONS Address of the Premises: 608 E. Hickory St, Ste 128, Denton, TX 76201 1. Application. Tenant, and Tenant's employees and invitees, shall abide by the following standards for the mutual safety, cleanliness, care, protection, comfort and convenience of all tenants and occupants of the Property. These Rules and Regulations apply to all of the Property as defined in this Lease including, but not limited to, the Premises, the building(s), the parking garages, if any, the common areas, driveways, and parking lots. 2. Consent Required. Any exception to these Rules and Regulations must first be approved in writing by Landlord. For purposes of these Rules and Regulations, the term "Landlord" includes the building manager, the building manager's employees, and any other agent or designee authorized by Landlord to manage or operate the Property. 3. Rules and Regulations: a. Tenant may not conduct any auction, "flea market" or "garage sale" on the Premises nor store any goods or merchandise on the Property except for Tenant's own business use. Food may not be prepared in the Premises except in small amounts for consumption by Tenant and Tenant's officers and employees. Vending machines or dispensing machines may not be placed in the Premises without Landlord's written approval. The Premises may not be used or occupied as sleeping quarters or for lodging purposes. Animals may not be kept in or about the Property. b. Tenant shall not obstruct sidewalks, driveways, loading areas, parking areas, corridors, hallways, vestibules, stairs and other similar areas designated for the collective use of tenants, or use such areas for Tenant's storage, temporary or otherwise, or for any purpose other than going to and from the Premises. Tenant shall comply with parking rules and guidelines as may be posted on the Property from time to time. c. Tenant shall not make any loud noises, unusual vibrations, unpleasant odors, objectionable or illegal activities on the Property. Tenant shall not permit the operation of any equipment in the Premises that annoys other occupants of the Property. Tenant shall not interfere with the possession of other tenants of the Property. d. Tenant may not bring any flammable, explosive, toxic, noxious, dangerous or hazardous materials onto the Property, except in small quantities as needed in Tenant's business and used, stored, and disposed of in accordance with applicable laws. e. Installation of security systems, telephone, television and other communication cables, fixtures and equipment must comply with Section 7.04 of the Lease, except that routine installation and construction of normal communication devices that do not require any holes in the roof or exterior walls of the Property do not require the written approval of Landlord. f. Movement into or out of the building through public entrances, lobbies or corridors that requires use of a hand truck, dolly or pallet jack to carry freight, furniture, office equipment, supplies and other large or heavy material, must be limited to the service entrances and freight elevators only and must be done at times and in a manner so as not to unduly inconvenience other occupants of the Property. All wheels for such use must have rubber tires and edge guards to prevent damage to the building. Tenant shall be responsible for and shall pay all costs to repair damages to the building caused by the movement of materials by Tenant. ADDENDUM "G" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.z!pLoqlx.com Exhibit 5 - Lease Agreement g. Requests by Tenant for building services, maintenance and repair must be made in writing to the office of the building manager designated by Landlord and must be dated. Tenant shall give prompt written notice to Landlord of any significant damage to or defects in the Premises or the Property, including plumbing, electrical and mechanical systems, heating, ventilating and air conditioning systems, roofs, windows, doors, foundation and structural components, regardless of whose responsibility it is to repair such damage or defects. h. Tenant shall not change locks or install additional locks on doors without the prior written consent of Landlord. If Tenant changes locks or installs additional locks on the Property, Tenant shall provide Landlord with a copy of each separate key to each lock upon Landlord's request. Upon termination of Tenant's occupancy of the Premises, Tenant must surrender all keys to the Premises and the Property to Landlord. i. Harmful liquids, toxic wastes, bulky objects, insoluble substances and other materials that may cause clogging, stains or damage to plumbing fixtures or systems must not be placed in the lavatories, water closets, sinks, or drains. Tenant must pay the costs to repair and replace drains, plumbing fixtures and piping that is required because of damage caused by Tenant. j. Tenant shall cooperate with Landlord and other occupants of the Property in keeping the Property and the Premises neat and clean. Nothing may be swept, thrown or left in the corridors, stairways, elevator shafts, lobbies, loading areas, parking lots or any other common areas on the Property. All trash and debris must be properly placed in receptacles provided therefor. k. Landlord may regulate the weight and position of heavy furnishings and equipment on the floor of the Premises, including safes, groups of filing cabinets, machines, and any other item that may overload the floor. Tenant shall notify Landlord when heavy items are to be taken into or out of the building, and the placement and transportation of heavy items may be done only with the prior written approval of Landlord. I. No window screens, blinds, draperies, awnings, solar screen films, window ventilators or other materials visible from the exterior of the Premises may be placed in the Premises without Landlord's approval. Landlord is entitled to control all lighting that may be visible from the exterior of the building. m. No advertisement, sign, notice, handbill, poster or banner may be exhibited, distributed, painted or affixed on the Property. No directory of tenants is allowed on the Property other than that provided by Landlord. n. Tenant agrees to cooperate with and assist Landlord in the prevention of peddling, canvassing and soliciting on the Property. o. Tenant accepts any and all liability for damages and injuries to persons and property resulting from the serving or sales of alcoholic beverages by or on behalf of Tenant on or from the Property. p. Any person entering and leaving the building before and after normal working hours, or building hours if posted by Landlord, whichever applies, may be required to identify himself to security personnel by signing a list and giving the time of day and destination or location of the applicable Premises. Normal building business hours are established by Landlord from time to time. 4. Revisions. Landlord reserves the right to revise or rescind any of these Rules and Regulations and to make additional rules that Landlord may determine are necessary from time to time for the safety, protection, comfort and convenience of the tenants and visitors of the Property and for the care, protection and cleanliness of the Property. Revisions and additions will be binding upon the Tenant as if they had been originally prescribed herein when furnished in writing by Landlord to Tenant, provided the additions and revisions apply equally to all tenants occupying the Property and do not impose any substantial cost to Tenant. 5. Enforcement. Any failure or delay by Landlord in enforcing these Rules and Regulations will not prevent Landlord from enforcing these Rules and Regulations in the future. If any of these Rules and Regulations is determined to be unenforceable, it will be severed from this Lease without affecting the remainder of these Rules and Regulations. ADDENDUM "G" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www zipLooix.com City of Denton Exhibit 5 - Lease Agreement Axis Realty Group EXHIBIT "A" SURVEY AND /OR LEGAL DESCRIPTION 608 E. Hickory St, Ste 128, Denton, TX 76201 East Hickory Addition, Lots 1 & 2, Block A EXCLUSIVE LISTING AGREEMENT ©Copyright 2014 NTCAR Form No. 4 (7- 22 -14) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLociix.com Exhibit 5 - Lease Agreement Axis Realty Group EXHIBIT "C" INFORMATION ABOUT BROKERAGE SERVICES Texas law requires all real estate licensees to give the following information about brokerage services to prospective buyers, tenants, sellers and landlords. Before working with a real estate broker, you should know that the duties of a broker depend on whom the broker represents. If you are a prospective seller or landlord (owner) or a prospective buyer or tenant (buyer), you should know that the broker who lists the property for sale or lease is the owner's agent. A broker who acts as a subagent represents the owner in cooperation with the listing broker. A broker who acts as a buyer's agent represents the buyer. A broker may act as an intermediary between the parties if the parties consent in writing. A broker can assist you in locating a property, preparing a contract or lease, or obtaining financing without representing you. A broker is obligated by law to treat you honestly. IF THE BROKER REPRESENTS THE OWNER: The broker becomes the owner's agent by entering into an agreement with the owner, usually through a written listing agreement, or by agreeing to act as a subagent by accepting an offer of subagency from the listing broker. A subagent may work in a different real estate office. A listing broker or subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first. The buyer should not tell the owner's agent anything the buyer would not want the owner to know because an owner's agent must disclose to the owner any material information known to the agent. IF THE BROKER REPRESENTS THE BUYER: The broker becomes the buyer's agent by entering into an agreement to represent the buyer, usually through a written buyer representation agreement. A buyer's agent can assist the owner but does not represent the owner and must place the interests of the buyer first. The owner should not tell a buyer's agent anything the owner would not want the buyer to know because a buyer's agent must disclose to the buyer any material information known to the agent. IF THE BROKER ACTS AS AN INTERMEDIARY: A broker may act as an intermediary between the parties if the broker complies with The Texas Real Estate License Act. The broker must obtain the written consent of each party to the transaction to act as an intermediary. The written consent must state who will pay the broker and, in conspicuous bold or underlined print, set forth the broker's obligations as an intermediary. The broker is required to treat each party honestly and fairly and to comply with The Texas Real Estate License Act. A broker who acts as an intermediary in a transaction: (1) shall treat all parties honestly; (2) may not disclose that the owner will accept a price less than the asking price unless authorized in writing to do so by the owner; (3) may not disclose that the buyer will pay a price greater than the price submitted in a written offer unless authorized in writing to do so by the buyer; and (4) may not disclose any confidential information or any information that a party specifically instructs the broker in writing not to disclose unless authorized in writing to disclose the information or required to do so by The Texas Real Estate License Act or a court order or if the information materially relates to the condition of the property. With the parties' consent, a broker acting as an intermediary between the parties may appoint a person who is licensed under The Texas Real Estate License Act and associated with the broker to communicate with and carry out instructions of one party and another person who is licensed under that Act and associated with the broker to communicate with and carry out instructions of the other party. If you choose to have a broker represent you, you should enter into a written agreement with the broker that clearly establishes the broker's obligations and your obligations. The agreement should state how and by whom the broker will be paid. You have the right to choose the type of representation, if any, you wish to receive. Your payment of a fee to a broker does not necessarily establish that the broker represents you. If you have any questions regarding the duties and responsibilities of the broker, you should resolve those questions before proceeding. OWNER: Date: EXCLUSIVE LISTING AGREEMENT ©Copyright 2014 NTCAR Form No. 4 (7- 22 -14) Axis Realty Group, 1517 Centre Place D6%e Denton, TX 76205 Phone: 940.891.2947 Pax: 940.891.2948 City of Denton Alex Payne Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziplooix.com Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH RAIL YARD PARTNERS, LTD. This Economic Development Program Grant Agreement ( "Agreement ") is made and entered into as of the effective date provided for below, by RAIL YARD PARTNERS, LTD. (the "Grantee "), a Texas limited partnership, and the CITY OF DENTON (the "City "), a Texas municipal corporation, for the purposes and considerations stated below: WHEREAS, this Agreement is authorized by and made pursuant to the economic development program provisions of Chapter 380 of the Texas Local Government Code (the "Act ") to promote local economic development and to stimulate business and commercial activity in the City of Denton; and WHEREAS, Grantee is contemplating a catalyst transit - oriented development of that certain real property located at 608 East Hickory, Denton Texas, 76201, within the city limits of the City of Denton as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property "); and WHEREAS, the project will involve Grantee investing approximately $12 million in Denton, and is expected to provide co- working and incubator space for an economic development program focused on the creation of high -tech companies and jobs; and WHEREAS, on the 22 1h of January 2015, Grantee submitted an application for economic development incentives to the City concerning the contemplated use and development of the Property, which is on file in the City's Office of Economic Development, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B ", and WHEREAS, on the 14th of October 2014, the Economic Development Partnership Board considered and recommended a local incentive for Rail Yard Partners, Ltd., and on the 16th of January 2015, the Tax Increment Reinvestment Zone Number One ( "TIRZ 1 ") Board of Directors recommended a local incentive for Rail Yard Partners, Ltd. in order to accomplish certain objectives stated within the Downtown TIF (TIRZ 1) Project Plan, a copy of which is attached hereto and made a part hereof by reference as Exhibit "C "; and WHEREAS, the City Council 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 and will stimulate development activity within the City of Denton for the benefit of the public. NOW, THEREFORE, the City and Grantee for and in consideration of the Property and the promises contained herein do hereby contract, covenant and agree as follows: 1 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement I. CONDITIONS OF THE GRANT A. Grantee covenants and agrees with the City that the City's obligations under this Agreement are subject to the fulfillment of the Grantees' obligations under this Agreement, and Grantee (or through Related Parties) hereby agrees 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 Grantee, Related Parties, and the City with respect to the financial or other incentives provided herein. In consideration of a Grant Agreement and subject to the Grantee meeting all the terms and conditions of the Grant as set forth herein, the City hereby grants the following: A grant (the "TIRZ Grant ") equal to $76,000 annually, from the Tax Increment Reinvestment Zone Number One Fund, commencing on March 1, 2016 and paid annually on March 1st for five years, terminating on March 1, 2021. B. A condition of the TIRZ Grant is that the Commercial Lease Agreement between the City of Denton and Rail Yard Partners, LTD remains in effect for the term of the grants, a copy of which is attached hereto and made a part hereof by reference as Exhibit "D ". C. The terms "Improvements" or "Contemplated Improvements" are defined as the construction, renovation and equipping of the Property 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; (2) tangible personal property located on or at the Property owned or controlled by Grantee, The kind and location of the Contemplated Improvements is more particularly described in the Incentive Application (the "Incentive Application ") submitted by Grantee to the City on January 22, 2015. D. Upon approval by the City Council, the Grantee and the City shall have the right to renew or extend the term of the TIRZ Grant in the event that the Commercial Lease Agreement between the City and Rail Yard Partners, LTD is renewed or extended. II. GENERAL PROVISION In the event of any conflict between the City zoning ordinances, or other City ordinances or regulations, and this Agreement, such ordinances or regulations shall control, provided however the City shall not diminish the benefits to the Grantee under this Agreement through ordinances or regulations (whether now or hereafter in effect). 2 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement III. TERMS AND CONDITIONS OF GRANT A. Subject to the terms and conditions of this Agreement, the City hereby agrees to pay to Grantee: 1. Upon execution of Commercial Lease Agreement and occupancy of property by City of Denton, a grant totaling $76,000 annually for five years commencing March 1, 2016. B. Grantee 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 Grantee and located on the Property. IV. RECORDS, AUDITS, AND EVALUATION OF PROJECT Grantee shall provide access and authorize inspection of the Property by authorized City employees and allow sufficient inspection of financial information to insure that the Improvements are made according to the specifications and conditions of this Agreement. Such inspections shall be done in a way that will not interfere with Grantee's business operations or reveal confidential or proprietary information. The City shall, on an annual basis, evaluate the Project to ensure compliance with this Agreement. Grantee shall provide information to the City on a form provided by the City for the evaluation. The 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 those Improvements installed, renovated, repaired or located on the Property. V. FAILURE TO MEET CONDITIONS In the event (i) Grantee or the Owner of the Property allow their ad valorem real property taxes owed to the City with respect to the Property, or ad valorem taxes owed to the City with respect to any tangible personal property owned or controlled by the Grantee and which is located on the Property to become delinquent and fails to timely and properly follow the legal procedures for protest and /or contest of any such ad valorem real property or tangible personal property taxes; or, (ii) any other material conditions of this Agreement are not substantially met by Grantee, then a "Condition Failure" shall be deemed to have occurred. It is understood that a Condition Failure shall not be deemed to occur merely because at a particular time it cannot be determined whether such condition has been or will be met, but shall occur only if at a particular time it can be determined that such condition will not be met after notice and reasonable 3 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement opportunity for Grantee to cure such failure. In the event that a Condition Failure occurs, the City shall give Grantee written notice of such Condition Failure and if the Condition Failure has not been cured or satisfied within ninety (90) days of said written notice, this Agreement may be terminated by the City; provided, however, that if such Condition Failure is not reasonably susceptible of cure or satisfaction within such ninety (90) day period and Grantee has commenced and is pursuing the cure or satisfaction of same, then after first advising the City of efforts to cure or satisfy same, Grantee may utilize such additional time as may be reasonably required to cure such Condition Failure, but not more than one hundred eighty (180) days, provided, however that the City may, in its discretion, authorize additional time in order to facilitate a cure of such Condition Failure. If a Condition Failure is not cured or satisfied after the expiration of the applicable notice and cure or satisfaction periods ( "Condition Failure Default "), the City may, as the City's sole and exclusive remedies, (a) terminate any payment(s) due pursuant to Section A.1. or A.2. above, and (b) require that Grantee repay to the City an amount equal to fifty percent (50 %) of such payments made in year of termination. Notwithstanding the foregoing, in no event shall Grantee be required to repay all or any portion of any payments made to Grantee pursuant to Section III A.1, or Section III A.2, above. VI. ASSIGNMENT Without the prior consent of the City, this Agreement and Grantee's rights and obligations hereunder may only be assigned to an affiliate of Grantee, and such assignment shall only be effective upon delivery of written notice of same to the City. Upon any assignment permitted in accordance with the terms of this Section VI, the assignee will be deemed the "Grantee" hereunder, such that any reference in this Agreement to "Grantee" or to "Rail Yard Partners, Ltd." shall be deemed to refer to such assignee. Consent of the City will not be unreasonably withheld. In the event that Grantee ceases to operate on the Property, this Agreement shall terminate and all obligations of the City, as set forth herein, shall terminate and be of no further force and effect. VII. NOTICE All notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designated in writing, by certified mail postage prepaid or by hand delivery: COMPANY: Rail Yard Partners, Ltd. Orison Holdings, LLC, General Partner ATTN: Brandon Martino 525 S. Loop 288, Suite 105 Denton, TX 76205 11 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement CITY: City Manager City of Denton 215 E. McKinney Denton, Texas 76201 BOARD: Board of Directors of Reinvestment Zone Number One c/o City of Denton 215 E. McKinney Street Denton, Texas 76201 VIII. CITY COUNCIL AUTHORIZATION This Agreement is authorized by the City Council at its meeting on the day of , 2015, authorizing the City Manager to execute this Agreement on behalf of the City. IX. INTENTIONALLY OMITTED X. SEVERABIILTY In the event any section, subsection, paragraph, sentence, or phrase is held invalid, illegal or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and shall be read as if the parties intended at all times to delete said invalid, illegal or unconstitutional provision. XI. ESTOPPEL CERTIFICATE 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 Rail Yard Partners, Ltd. 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. XII. RAIL YARD PARTNERS, LTD. STANDING Grantee, 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 5 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement the underlying ordinances, resolutions, or City Council actions authorizing same and Grantee shall be entitled to intervene in said litigation. XIII. APPLICABLE LAW This Agreement shall be construed under the laws of the State of Texas. Venue for any action under this Agreement shall be the appropriate court serving Denton County, Texas. This Agreement is fully performable in Denton County, Texas. XIV. FORCE MAJEURE If, because of flood, fire, explosions, civil disturbances, strikes, war, acts of God, or other causes beyond the control of either Party, either Party is not able to perform any or all of its obligations under this Agreement, then the respective Party's obligations hereunder shall be suspended during such period but for no longer than such period of time when the party is unable to perform. XV. AMENDMENT This Agreement is the entire agreement of the parties and may only be modified by a written instrument executed by both parties. XVI. EFFECTIVE DATE This Agreement is effective as of the day of 12015. CITY OF DENTON, TEXAS I: ATTEST: JENNIFER WALTERS, CITY SECRETARY I: 31 GEORGE C. CAMPBELL CITY MANAGER Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement APPROVED AS TO FORM: ANITA BURGESS, CITY ATTORNEY I: I: RAIL YARD PARTNERS, LTD. ORISON HOLDINGS, LLC, GENERAL PARTNER Brandon Martino ITS: Managing Partner ACKNOWLEDGMENTS STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Program Agreement was executed before me on the day of 12015 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 7 Exhibit 5 - Lease Agreement Exhibit D - Grant Agreement STATE OF TEXAS COUNTY OF DENTON The foregoing Economic Development Program Agreement was executed before me on the day of 2015 by on behalf of said corporation. Name: Notary Public in and for the State of Texas �ser[ssoce ,tl �u „rysoz euns�aazacm s��s NliadW SVXAI NOINHO AN 0 N D 1H 8 0 9 - � e--I �wew wxew sio ,iNOav PqlLpjv sp s -qea vieeLn!w SAIV9 " "',v,9..". vv,oNoivnoxaa °IV IA24aLS NoLLISodX3 I r u H6VN.1. i I Ago �� a � go o' � ❑xm O L (.69 -LI£] m .O S.LL QOO S e 3Nd, �al� - - - -- — _ 00 I W W ni- - -- -- - = - -II n Da W LJ z i Po a d, 6 _ a 4 I e � `. 3 Exhibit 7 - Incentive Agreement ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH RAIL YARD PARTNERS, LTD. This Economic Development Program Grant Agreement ( "Agreement ") is made and entered into as of the effective date provided for below, by RAIL YARD PARTNERS, LTD. (the "Grantee "), a Texas limited partnership, and the CITY OF DENTON (the "City "), a Texas municipal corporation, for the purposes and considerations stated below: WHEREAS, this Agreement is authorized by and made pursuant to the economic development program provisions of Chapter 380 of the Texas Local Government Code (the "Act ") to promote local economic development and to stimulate business and commercial activity in the City of Denton; and WHEREAS, Grantee is contemplating a catalyst transit - oriented development of that certain real property located at 608 East Hickory, Denton Texas, 76201, within the city limits of the City of Denton as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property "); and WHEREAS, the project will involve Grantee investing approximately $12 million in Denton, and is expected to provide co- working and incubator space for an economic development program focused on the creation of high -tech companies and jobs; and WHEREAS, on the 22"' of January 2015, Grantee submitted an application for economic development incentives to the City concerning the contemplated use and development of the Property, which is on file in the City's Office of Economic Development, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B ", and WHEREAS, on the 14 "' of October 2014, the Economic Development Partnership Board considered and recommended a local incentive for Rail Yard Partners, Ltd., and on the 16`x' of January 2015, the Tax Increment Reinvestment Zone Number One ( "TIRZ I") Board of Directors recommended a local incentive for Rail Yard Partners, Ltd. in order to accomplish certain objectives stated within the Downtown TIF (TIRZ 1) Project Plan, a copy of which is attached hereto and made a part hereof by reference as Exhibit "C "; and WHEREAS, the City Council 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 and will stimulate development activity within the City of Denton for the benefit of the public. NOW, THEREFORE, the City and Grantee for and in consideration of the Property and the promises contained herein do hereby contract, covenant and agree as follows: Exhibit 7 - Incentive Agreement 1. CONDITIONS OF THE GRANT A. Grantee covenants and agrees with the City that the City's obligations under this Agreement are subject to the fulfillment of the Grantees' obligations under this Agreement, and Grantee (or through Related Parties) hereby agrees 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 Grantee, Related Parties, and the City with respect to the financial or other incentives provided herein. In consideration of a Grant Agreement and subject to the Grantee meeting all the terms and conditions of the Grant as set forth herein, the City hereby grants the following: A grant (the "TIRZ Grant ") equal to $76,000 annually, from the Tax Increment Reinvestment Zone Number One Fund, commencing on March 1, 2016 and paid annually on March 1St for five years, terminating on March 1, 2021. B. A condition of the TIRZ Grant is that the Commercial Lease Agreement between the City of Denton and Rail Yard Partners, LTD remains in effect for the term of the grants, a copy of which is attached hereto and made a part hereof by reference as Exhibit "D ". C. The terms "Improvements" or "Contemplated Improvements" are defined as the construction, renovation and equipping of the Property 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; (2) tangible personal property located on or at the Property owned or controlled by Grantee, The kind and location of the Contemplated Improvements is more particularly described in the Incentive Application (the "Incentive Application ") submitted by Grantee to the City on January 22, 2015. D. Upon approval by the City Council, the Grantee and the City shall have the right to renew or extend the term of the TIRZ Grant in the event that the Commercial Lease Agreement between the City and Rail Yard Partners, LTD is renewed or extended. II. GENERAL PROVISION In the event of any conflict between the City zoning ordinances, or other City ordinances or regulations, and this Agreement, such ordinances or regulations shall control, provided however the City shall not diminish the benefits to the Grantee under this Agreement through ordinances or regulations (whether now or hereafter in effect). 2 Exhibit 7 - Incentive Agreement III. TERMS AND CONDITIONS OF GRANT A. Subject to the terms and conditions of this Agreement, the City hereby agrees to pay to Grantee: 1. Upon execution of Commercial Lease Agreement and occupancy of property by City of Denton, a grant totaling $76,000 annually for five years commencing March 1, 2016. B. Grantee 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 Grantee and located on the Property. IV. RECORDS, AUDITS, AND EVALUATION OF PROJECT Grantee shall provide access and authorize inspection of the Property by authorized City employees and allow sufficient inspection of financial information to insure that the Improvements are made according to the specifications and conditions of this Agreement. Such inspections shall be done in a way that will not interfere with Grantee's business operations or reveal confidential or proprietary information. The City shall, on an annual basis, evaluate the Project to ensure compliance with this Agreement. Grantee shall provide information to the City on a form provided by the City for the evaluation. The 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 those Improvements installed, renovated, repaired or located on the Property. V. FAILURE TO MEET CONDITIONS In the event (i) Grantee or the Owner of the Property allow their ad valorem real property taxes owed to the City with respect to the Property, or ad valorem taxes owed to the City with respect to any tangible personal property owned or controlled by the Grantee and which is located on the Property to become delinquent and fails to timely and properly follow the legal procedures for protest and /or contest of any such ad valorem real property or tangible personal property taxes; or, (ii) any other material conditions of this Agreement are not substantially met by Grantee, then a "Condition Failure" shall be deemed to have occurred. It is understood that a Condition Failure shall not be deemed to occur merely because at a particular time it cannot be determined whether such condition has been or will be met, but shall occur only if at a particular time it can be determined that such condition will not be met after notice and reasonable 3 Exhibit 7 - Incentive Agreement opportunity for Grantee to cure such failure. In the event that a Condition Failure occurs, the City shall give Grantee written notice of such Condition Failure and if the Condition Failure has not been cured or satisfied within ninety (90) days of said written notice, this Agreement may be terminated by the City; provided, however, that if such Condition Failure is not reasonably susceptible of cure or satisfaction within such ninety (90) day period and Grantee has commenced and is pursuing the cure or satisfaction of same, then after first advising the City of efforts to cure or satisfy same, Grantee may utilize such additional time as may be reasonably required to cure such Condition Failure, but not more than one hundred eighty (180) days, provided, however that the City may, in its discretion, authorize additional time in order to facilitate a cure of such Condition Failure. If a Condition Failure is not cured or satisfied after the expiration of the applicable notice and cure or satisfaction periods ( "Condition Failure Default "), the City may, as the City's sole and exclusive remedies, (a) terminate any payment(s) due pursuant to Section A. I. or A.2. above, and (b) require that Grantee repay to the City an amount equal to fifty percent (50 %) of such payments made in year of termination. Notwithstanding the foregoing, in no event shall Grantee be required to repay all or any portion of any payments made to Grantee pursuant to Section III A.1, or Section III A.2, above. VI. ASSIGNMENT Without the prior consent of the City, this Agreement and Grantee's rights and obligations hereunder may only be assigned to an affiliate of Grantee, and such assignment shall only be effective upon delivery of written notice of same to the City. Upon any assignment permitted in accordance with the terms of this Section VI, the assignee will be deemed the "Grantee" hereunder, such that any reference in this Agreement to "Grantee" or to "Rail Yard Partners, Ltd." shall be deemed to refer to such assignee. Consent of the City will not be unreasonably withheld. In the event that Grantee ceases to operate on the Property, this Agreement shall terminate and all obligations of the City, as set forth herein, shall terminate and be of no further force and effect. VII. NOTICE All notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designated in writing, by certified mail postage prepaid or by hand delivery: COMPANY: Rail Yard Partners, Ltd. Orison Holdings, LLC, General Partner ATTN: Brandon Martino 525 S. Loop 288, Suite 105 Denton, TX 76205 0 Exhibit 7 - Incentive Agreement CITY: City Manager City of Denton 215 E. McKinney Denton, Texas 76201 BOARD: Board of Directors of Reinvestment Zone Number One c/o City of Denton 215 E. McKinney Street Denton, Texas 76201 VIII. CITY COUNCIL AUTHORIZATION This Agreement is authorized by the City Council at its meeting on the day of , 2015, authorizing the City Manager to execute this Agreement on behalf of the City. IX. INTENTIONALLY OMITTED X. SEVERABIILTY In the event any section, subsection, paragraph, sentence, or phrase is held invalid, illegal or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and shall be read as if the parties intended at all times to delete said invalid, illegal or unconstitutional provision. XI. ESTOPPEL CERTIFICATE 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 Rail Yard Partners, Ltd. 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. XII. RAIL YARD PARTNERS, LTD. STANDING Grantee, 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 5 Exhibit 7 - Incentive Agreement the underlying ordinances, resolutions, or City Council actions authorizing same and Grantee shall be entitled to intervene in said litigation. XIII. APPLICABLE LAW This Agreement shall be construed under the laws of the State of Texas. Venue for any action under this Agreement shall be the appropriate court serving Denton County, Texas. This Agreement is fully performable in Denton County, Texas. XIV. FORCE MAJEURE If, because of flood, fire, explosions, civil disturbances, strikes, war, acts of God, or other causes beyond the control of either Party, either Party is not able to perform any or all of its obligations under this Agreement, then the respective Party's obligations hereunder shall be suspended during such period but for no longer than such period of time when the party is unable to perform. XV. AMENDMENT This Agreement is the entire agreement of the parties and may only be modified by a written instrument executed by both parties. XVI. EFFECTIVE DATE This Agreement is effective as of the day of , 2015. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY on GEORGE C. CAMPBELL CITY MANAGER Exhibit 7 - Incentive Agreement APPROVED AS TO FORM: ANITA BURGESS, CITY ATTORNEY RAIL YARD PARTNERS, LTD. ORISON HOLDINGS, LLC, GENERAL PARTNER Brandon Martino ITS: Managing Partner ACKNOWLEDGMENTS STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Program 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 7 Exhibit 7 - Incentive Agreement STATE OF TEXAS COUNTY OF DENTON The foregoing Economic Development Program Agreement was executed before me on the day of , 2015 by , on behalf of said corporation. Name: Notary Public in and for the State of Texas Exhibit 7 - Incentive Agreement Exhibit A Legal Description of Property 608 E. Hickory St, Ste 128, Denton, TX 76201 East Hickory Addition, Lots 1 & 2, Block A Exhibit 7 - Incentive Agreement Exhibit B pil I a I IMI IL %--WAIWMM I rJOIN City of Denton Department of Economic Development Denton, Texas 76201 (940) 349-7776 (940) 349-8596 FAX www ,Qijyof denton.com Aimee.BissettQgLty-Qfdenton.cotn Page 1 of 9 Exhibit 7 - Incentive Agreement Exhibit B INCENTIVE APPLICATION CITY OF DENTON, TEXAS ----------------------------- ------------ Property Owner: Rail Yard Partners, LTD. www.themartinogroup.com 940-382-5000 Email Address- bmartino@themartinogroup.com 2. Provide a chronology of plant openings, closing and relocations over the past 15 years. N/A - newly formed entity 3. Provide a record of mergers and financial restructuring during the past 15 years. NIA - newly formed entity 4. Will the occupants of the project be owner or lessee? If lessee, are occupancy commitments already existing? 11 essee - mixed use Is the project a relocation of existing facility or a new facility to expand operations? If relocation, give Page 2 of 9 Exhibit 7 - Incentive Agreement Exhibit B current location. There is one vacant, existing building on the property that will be rehabbed and incorporated into the project design. The rehabbed building will house the commercial tenant1s. 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, NIA - future tenants are not confi rmed at this time 7 Property Description. (see Exhibit A attached) - Attach a copy of the legal description detailing property's metes and bounds. - Attach map of project including all roadways, land use and zoning within 500 feet of site. 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). #32947 Page 3 of 9 Exhibit 7 - Incentive Agreement Exhibit B -------------------------- 12. Describe any off-site infrastructure requirements: (estimated costs $437,000) ---------------- 0 Water-A new 8" water line I a Wastewater - Anew 8" wastewater line e Streets - N/A • Other- Public sidewalks will be constructed along Hickory and Exposition 13. Project Operation Phase, Provide employment information for the number of years incentive is requested. 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. At Project Existing Start Date At Term of Employment Information Operation (mo/yr) Incentive (if applicable) A. Total number of permanent, full-time jobs B. Employees transferred from outside Denton C. Net permanent full-time jobs (A. minus B.) E. Total annual payroll for all permanent, full-time jobs (A.) 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. Exhibit 7 - Incentive Agreement Exhibit B M171 "IT, =1 Q. Indicate the number of shifts the L 2e -project vAJI o rate Unknown H. Estimate annual utility usage for project: Unknown 1-11 — ------------------------------------ — --------------------------------------- - Electric Water kWh � gpd Wastewater Gas gpd � 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 111). 15. Is property zoned appropriately? Yes, zoned DC-G Current zoning. Zoning required for proposed project. Anticipated variances. NIA 16. Is property platted? Platting is underway Will replatting be necessary 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). Demo permit, Building permit and SWPPP - we estimate $287,000 in total fees paid to the City of Denton including permit, inspection, utility, impact, and park fees Exhibit 7 - Incentive Agreement Exhibit B B. Provide record of compliance to all environmental regulations for the past five years. NIA - newly formed enft — — — — — — — — — — — — — — — — — — — — — — — — — — 18. Provide specific detail of any businesses /residents that will be displaced and assistance that will be available from the requesting company. — — ------------------ ---------------- ---- NIA ------------------- ------------ 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. N/A 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. Rail Yard Partners, LTD. is seeking 75% tax abatement for a period of 10 years. This mixed-use development will provide upscale residences as well as highly sought after commercial space. The development is revitalizing one existing, vacant building and overall enhancing the East Hickory district. The project expands the current boundaries of "Downtown" and is located in close proximity to the Downtown Denton Transit Center. The City will benefit from increased utility revenue, permit fees and impact fees. Residential tenants will patronize restaurants and shops in the Downtown area. Some of the commercial tenants will likely provide sales tax revenue to the City. In addition, the rent will be structured such that commercial tenants will benefit from tax abatement. Therefore, approved incentives will ultimately serve as a tool to attract commercial tenants. ------------------------------------------ . .. . .. . .................................................................... — ---------------- 21. List additional abatement factors to be considered for this project as outlined on pages 3 and 4 of the Incentive Policy. Exhibit 7 - Incentive Agreement Exhibit B X Occupies building vacant for at least 2 years Donation of materials to public schools Project creates high-skilled, high-paying jobs X Improvements to Downtown Significant relationship with universities Project forms business park 25% of new jobs filled by Denton residents International or national headquarters X 25% local contractors to be utilized Medical manufacturing or research facility 25% of jobs are knowledge-based Environmentally sustainable practices used Donation of significant public art Renewable Energy generated/stored/utilized Community support and involvement: Attach description of community involvement Financial Information: Attach a copy of the latest audited financial statement or, in the case of a new project, a business plan. New entity, now project - See attached renderings 23. Does the project have an eligible environmentally sustainable or renewable energy component (if so, please identify type and provide a brief description)? N/A 24. Applicants seeking LEER certification must complete the Green Building Application for Tax Abatement (Exhibit B of the policy). N/A Page 7 of 9 Exhibit 7 - Incentive Agreement Exhibit B COMPLETE THIS SECTION IF REQUESTING ADDITIONAL INCENTIVE BASED ON LEED CERTIFICATION CONSTRUCTION Property Owner Company or Protect Name Mailing Address Telephone Fax No. Website Contact Name 'Title Mailing Address Telephone Fax No. Email Address 2. Project location address: 3. Provide documentation that the project has been registered with the U.S. Green Building Council, 4. Provide a description of the project (please include the building size, number of occupants and � = - M 6. Attach a preliminary Leadership in Energy and Environmental Design (LEED) Scorecard illustrating how project will achieve the LEED certification. M-Mom Exhibit 7 - Incentive Agreement Exhibit B Level of Certification; Number of Points: Page 9 of 9 Exhibit 7 - Incentive Agreement 111312015 Denton Central Appraisal District- PropertyDetails Tax Information The Denton Central Appraisal District is not responsible for the assessment or collection of taxes for this or any other property. If you have a question regarding your tax bill please contact the Denton County Tax Assessor / Collector. General Information Property.... ID ................................................ 1111C 10 i5iiiR A1184a H. Sisco, Tr 67, 2.046 Acres, Old Dcad Tr 77r- 77r-1 77A owner Name ... . R** *a- 11 Y- "a r*'d"* Partners r t' *n- e* Fs' .L' *1 * d Percent..Ownership .............................................................................................................................................................................100 - * JA..... *"**'** *­ *"'*"** .... *"*"***'*"*"'*"*'*"'*"***"***,**"**"**"*"*'*'** '- -- * - ** * ................... * .......... * .......... ........... Mailing Address 525 S Loop 288 Ste 105 ............... ................................. I ............ I .......... ........................................................................... ......................................................................................... Denton, TX 76205-4508 Taxing 'u" * r"' I *s'*' d-, I *c" ' t** " I o** 'n- T- F, '6' D' *e- o-n' City '-- ' ' " b", 'o' w"'n' t* * o- 'w" 'n' T i'r' z* No View Ma 2014 Certified Values Total Improvement Value Total Market Value ................................................................... �& ricultural Use Red , '* "* *"* '' i Timber R educt ion 2014 Estimated Taxes Entity Name Tax Rate Per Taxable $100 Value C05 (Denton City Of) i�R {Denton .............. ............................... ........................... {Denton 1s.d N/A +) $736,314 33.686 Calculated Tax Ceiling Taxes Amount Denton City Of 0.68975% $870,000.00 $6,000,83 N/A Denton County 0,2722% $870,000.00 $2,368.14 N/A Denton ISD 1.54% $870,000.00 $13,398.00 N/A Estimated Total $21,766.97 Taxes DO NOT PAY TAXES BASED ON THESE ESTIMATED TAXES. You will receive an official tax bill from the appropriate agency when they are prepared. https://www.dentoncod.comAndex.php?option=com—content&task=view&id=100&Year=2015&PropertylD=32947&PropertyType=R&,AbsCd=AI184A 1/3 Exhibit 7 - Incentive Agreement 1/1312015 Denton Central Appraisal District- PropertyDetails (axes are coiiected ny the agency Wrhatfng you the otticzai tax Diii. io see a listing of agencies that collect taxes for your property, click here The estimated taxes are provided as a courtesy and should not be relied upon in making financial or other decisions. The Denton Central Appraisal District (DCAD) does not control the tax rate nor the amount of the taxes, as that is the responsibility of each Taxing Jurisdiction. Questions about your taxes should be directed to the appropriate taxing jurisdiction. These tax estimates are calculated by using the taxable value as of 6:OOAM multiplied by the most current tax rate. It does not take into account other special or unique tax scenarios. 2015 Improvements Improvement 1359579 State Code F1 Improvement Type Commercial - COMMERCI.AL' ................................................................................................................................................................................................................... ............................... Exterior Wall Brick Veneer ................................................................................................................................................................................................................... ............................... Foundation SLAB Interior Finish Plaster ................................................................................................................................................................................................................... ............................... lU Dock Y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Condition .... Best Heatin .lCoolin� CNCA .... ............................... ................................ Class What's this? Year Built Sq. Footage Type 910 1952 28,306 sq. feet Main Area Land Segments Land Type Acres S. Ft. Commercial 2,046 89,124 sq. feet Property History Year Improvement(s) Land Market Appraised Assessed 2014 $736,314 $133,686 $870,000 $870,000 $870,000 2013 $642,314 $133,686 $776,000 $776,000 $776,000 2012 $491,251 $133,686 $624,937 $624,937 $624,937 2011 $377,209 $133,686 $510,895 $510,895 $510,895 2010 $377,209 $133,686 $510,895 $510,895 $510,895 2009 $423,444 $133,686 $557,130 $557,130 $557,130 2008 $422,950 $133,712 $556,662 $556,662 $556,662 2007 $179,788 $133,712 $313,500 $313,500 $313,500 2006 $160,070 $133,712 $293,782 $293,782 $293,782 2005 $154,551 $133,712 $288,263 $288,263 $288,263 2004 $146,908 $133,712 $280,620 $280,620 $280,620 2003 $142,238 $133,712 $275,950 $275,950 $275,950 2002 $81,388 $133,712 $215,100 $215,100 $215,100 2001 $42,346 $133,712 $176,058 $176,058 $176,058 Deed History Date Type Seller Buyer peed Sale Price Number Special East Hickory Rail Yard 2014- 12/5/2014 , , _ �__. ____ ­J --- Unavailable httpsJ /www.dentonc-ad.com /index.php ?option =com content& task = view &id = 100& Year= 20l5&PropertylD= 32947& PropertyType= R&AbsCd= A1184A 2/3 Exhibit 7 - Incentive Agreement 1/1312015 Denton Central Appraisal District- PropertyDetalls Wu V-1 LIC ExhibitgrrnerS L-CU lZa/ato Special Martin, Dsm Partners 2014- 5/27/2014 Wd Dennis L & I Ltd 49313 Unavailable Sherrie R 1/1/2009 Warranty East Hickory East Hickory 2009- Unavailable Deed Vii, Llc Vi Llc 122728 12/31/2002 Special Dsm Partners East Hickory 5269 Unavailable Wd I Ltd Vii, Llc -3464 Warranty Martin, 93- 3/26/1993 Deed Blair, W R Dennis L & 0016954 $162,500 Sherrie R Real Estate Sales 'Tear Agent ID Agent Name 2014 792859 Avs Property Tax Llc 2013 792859 Avs Property Tax Llc 2011 10 P E Pennington • Co Inc 2010 10 P E Pennington & Co Inc In 2005, Texas passed Senate Bill 541, which prohibits the Denton Central Appraisal District -- and every other Appraisal District in the State of Texas -- from making photographs and floorplans of property available online. Exempted from the restriction will be aerial photographs of five or more separately owned buildings. [ Back to SearcL], httpsYMww.dentonead.comAndex.php?option=com content&lask=view&!&-100&Year=2015&PropertylD=32947&PropertyType-R&AbsCd=AI184A 313 Show sales that occurred within the past 6 months I year 2 years Subject Property Abstract/Subdivision: Link Link Link A1184A Subject Property City: Denton City Of Link Link Link Subject Property School District: Link Link Link Denton 'Tear Agent ID Agent Name 2014 792859 Avs Property Tax Llc 2013 792859 Avs Property Tax Llc 2011 10 P E Pennington • Co Inc 2010 10 P E Pennington & Co Inc In 2005, Texas passed Senate Bill 541, which prohibits the Denton Central Appraisal District -- and every other Appraisal District in the State of Texas -- from making photographs and floorplans of property available online. Exempted from the restriction will be aerial photographs of five or more separately owned buildings. [ Back to SearcL], httpsYMww.dentonead.comAndex.php?option=com content&lask=view&!&-100&Year=2015&PropertylD=32947&PropertyType-R&AbsCd=AI184A 313 Exhibit 7 - Incentive Agreement Exhibit B q:rr, Exhibit 7 - Incentive Agreement Exhibit B -, Complete Renovation of Historic Downtown Building For Mixed Use 1517 Contra Now DE Ste 250 Denton, TX _�76205 E;�;riqh=014 AAs i;--W&;r P wwwaAsreolty.b1z Exhibit 7 - Incentive Agreement Exhibit B i, VY r FOR ORE INFORMATION PLEASE CONTACT r; o, , gal i t U u/ Exhibit 7 - Incentive Agreement Exhibit B 6W E HCKORY, DENTON, TX 76205 FOR M091 W91 TION, PLEASE ; TACT 9 1517 nh- a,,,Mar Dr., St ,,,,, ton, T 7620 rightQ2014 Awls Psalky Gap wwwaxisreally.61z al x ax4real lb%. 3 Exhibit 7 - Incentive Agreement Exhibit B ' tl; 17 Centre Place Dr., Ste 250 Denton, X 7620E } op'yrri &0201d AAs ,Mtyr Gip wwwaxisrealtybiz alex@axisrealty.biz f t ri.d razftoxisroa lain 4 Exhibit 7 - Incentive Agreement ME Exhibit B 1517 Centre Nace Dr.r, Sto 250 Dran�on, TX 762.0,5 ... . ..................................................... . . .............. --", . .............. Cop/6*02014 Ands Rutty Gmup wlwmr.av E Exhibit 7 - Incentive Agreement ......... . .. . . .. . ...... r W Pwkws'fl � ; f M P"d ............. Exhibit B rill!;, iiiiii ............ iii 40 soluw� z _w' EH R==== ........... . .... . ..... . ..... ..... 2 it ftbft�td came ......M... W 44�Mmw&fty 4j .......... aC . ...... . . . . . .... JL . . . ........ Copyrigh#02014 AAs Realty Gmup www.axisrealty.16, Exhibit 7 - Incentive Agreement Exhibit B 1 111111111111111111 l�, liplillill 11111111 11 M', wwwqwwll� Im Wl X MOM= T", ............. ................................................ ........................ ... .............................. Copyri&0201A Axis Recdty Gr<wp www.axisrealtybiz Exhibit 7 - Incentive Agreement Exhibit B WO Pno WK, 7 5, 111111A, CO, EMEMEMENNOMMMEMENIMMM The Rallyard version 2 Prepared by Alex PayneThe Rallyard 608 E Hldcory St, Denton, Texas, 76205 ®71,3,3, Miles .............................. —..- .......... . ..... 7 &Aftm Mago 10400 OW dW SOLEMI 4)Mll MPSI (PUftt ftnJOrIg SOftfflicaS RK,) 9_ ,« a� DatwMAKM -------------- October 2014 Iml . ........... 11 ............................ I .................................................................... - opyrightC2014 Axis ReoIty Group www.axi FOR MOAL OfSki "TIVO Piffilif CT WAC I'ALEX M Exhibit 7 - Incentive Agreement Exhibit B 11! AX, � I S- UMMEMMOMMUMMEMEMEMM The Rallyard version 2 Prepared by Alex PaynaThe Railyard 608 E Hickory St, Denton, Texas, 76205 Ring, 1, 3, 'S5 M110,s ........................ AvwwM& Dally T-Ma Vohms up to GAM Wawa#— pw -by AM - "Aft fffWff - 30,850 34000. 840" A 50,009 - 10MAW �,Mftw Okon 004000 pw dw Soumu.- C2011 MPM (Mvrket Maridng .'Saba Umm jpc.� Sotem Jkjc. d bz. t1uhaMp.trwe . .......................................... .. . .......... — — — — — — — — — — — — — October 15, 2014 11,0191 fillarilf 1517 Centre Place Dr, Ste 250 Denton, TX 76205 Copydght02014 Axis Realty Group wwwcle alex@axisrealty.biz M, . . . ........................... .. . . ......... "N Mum V "fA D M, Aur, 25 L", tAcAwy 1,1 21 z tr yw 81! 10 006 01 1114�, G Is Pred Apooj% ................................. ............................................................................. ......................................... 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"p #0' 0�1'1 5 mibs 2010-2013 Grwth Rl: Population 201 3 -2018 Grwth Fft Population IA?% 2.61 smmw Esllfowam� 1. 2W% . .. . ............................................... ......................................... . ..... . . ................................................................... .— ................................... . ........................................... -, ...................... . October 16.2014 FOR MORE INFORMANON paAm conTAcTALEX PAYNEITMI 00RAM 1517 Centre Place Dr., Ste 250 Denton, TX 76205 Copyright020114 " Realty Group wwwaxisreahybiz alexamisrecifty.biz /teri.doraziWaxisrealty.biz 10 Exhibit 7 - Incentive Agreement Exhibit B AXIS Traffic Count Profile P"n"IM-W Prepared by Alex P*YiwThe Raffiord The RaIWW version 2 Latitude: 332143W SM E HMM St Dentan, Twous, 76M Longitude: -97.12494 RIM .*,S,mUs* radius Distance: Sum: Closest Cros"reet- Year of count: Count: 0.10 E Hickory St E Oak St (0.02 miles W) 2009 3'820 0.14 E Hickory St eposkilion St (0.05 miles W) 2009 2,280 0.16 E Hickory St E Oak St (0.03 miles E) 2000 1,586 0.17 E Oak St N Bell Ave (0.04 miles MO 2004 190 0.18 E McKinney St N Bradshaw St (0.08 miles E) 2009 15,800 0.19 Frame St Kent St (0.01 miles N) 2009 1,550 0.20 N Bell Ave E Oak St (0.01 miles N) 2000 19,349 0.22 N Bradshaw St E Oak St (0.01 Milo$ N) 2004 970 0.23 E Oak St N Bell Ave (0.03 miles E) 1999 3,580 0.26 Bell PI E McKinney St (0.06 miles S) 2004 630 0.26 E Hickory St Russell St (0.01 miles W) 2000 338 0.28 N Bell Ave Mingo Rd (0.03 miles NE) 2009 16,920 OM E McKinney St Oakland St (0.04 idles W) 2009 12,800 0.32 Mingo Rd N Bell Ave (0.04 miles SW) 1999 9,311 0.33 Oakland St E McKinney St (0.01 miles N) low 347 0.36 N Bell Ave Mingo Rd (0.08 miles S) 2000 11,232 0.38 Vine St Mingo Rd (0.0 miles ) 1996 8,383 0.39 N Wood St E McKinney St (0.01 miles N) 2004 goo 0.39 E Prairie St S Bell Ave (0.02 miles VOW) 2004 1,220 0.40 N Wood St Davis St (0.05 miles N) 2004 1,190 0.40 E Hickory St S Wood St (0.03 miles W) 2009 2,180 0.42 Paisley St Frame St (0.04 miles " 1999 1,680 0.43 N Locust St E Parkway St (0.23 miles N) 2004 4,260 0A4 E McKinney St N Ruddell St (0.0 idles E) 1999 1,027 0A4 N Ruddell St Davis St (0.02 miles N) 2009 l'W 0.45 8 Bell Ave Robertson St (0.06 miles S) 2009 21,510 0A5 N Locust St E Parkway St (0.12 miles N) 2008 13,300 0.46 Robertson St Sldnrmr St (0.02 miles NW) 2004 2,370 0.47 Frame St ViRthers St (0,01 miles N) 2009 11950 0.48 Withers St N Bell Ave (0.03 miles " 1999 2,875 Data Natafte Traffic Profile displays up to 30 of the closest available traffic counts within the largest radius around your site. The years of the counts in the database range from 20I I to 1963. Just over 68% of the counts were taken between 2001 and 2011 and 86% of the counts were taken in 1997 or later. Traffic counts are identified by the skeet on which they were recorded, alowith the distance and direction to the closest cross- street. Distances displayed as 0.00 miles (due to rounding), are closest to the site. A traffic count Is defined as the two-way Average Daily Traft (AD7) that passes that location. atm Xm� Copyright020114 A)& Realty Graulp wwwaxisrealtybiz alex@axisrealty.biz / teri.dorazilO 11 om Exhibit 7 - Incentive Agreement Exhibit B % The Rallyard version 2 Prepared by Alex PayneThe Rallyard 608 E Hickory St, Denton, Texas, 76205, 1 � 19 ea .. 73' i Rings: 1, 3, 5 mile radii I mile 3 miles 5 miles Population 2000 Population 10,372 71,051 90,075 2010 Population 11,348 80,388 iw'ssa 2013 Population 11,490 82,808 122,223 2018 Population 12,238 90,170 135,727 2000-2010 Annual Rate 0.90% 1.24% 2.61% 2010-2013 Annual Rate 0.38% 0.92% 1.47% 2013-2018 Annual Rate 1.27% 1.72% 2.12% 2013 Mate Population 50.9% 48.8% 49.1% 2013 Female Population 49.1% 51.2% 50.9% 2013 Median Age 26.4 26.2 27.9 In the Identified area, the current year population is 122,223. In 2010, the Census count In the area was 116,558. The rate of change since 2010 was 1.47% annually. The five-year projection for the population In the area is 135,727 representing a change of 2.12% annually from 2013 to 2018. Currently, the population Is 49.1% mate and 50.9% female. Median Age The median age In this area Is 27.9, compared to U.S. median age of 37.3. Rom and lifthriteltir 2013 White Alone 58.9% 70.1% 72.4% 2013 Black Alone 19.1% 12.4% 10.7% 2013 American Indian/Alaska Native Alone 0.8% 0.8% 0.8% 2013 Asian Alone 3.0% 4.4% 3.9% 2013 Pacific Islander Alone 0.2% 0.1% 0.1% 2013 Other Race 14.2% 8.6% 8.6% 2013 Two or More Races 3.8% 3.6% 3.4% 2013 Hispanic Origin (Any Race) 36.7% 23.7% 24.1% Persons of Hispanic origin represent 24.1% of the population In the Identified area compared to 17.4% of the U.S. population. Persons of Hispanic Origin may be of any race. The Diversity Index, which measures the probability that two people from the same area will be from different race/ethnlc groups, Is 65.91n the Identified area, compared to 62.1 for the U.S. as a whole. Households 2000 Households 4,022 27,872 34,205 2010 Households 4,298 31,415 43,441 2013 Total Households 4,367 32,433 45,521 2018 Total Households 4,709 35,580 50,736 2000-2010 Annual Rate 0.67% 1.20% 2.42% 2010-2013 Annual Rate 0-49% 0.99% 1.45% 2013-2018 Annual Rate 1.52% 1.87% 2.19% 2013 Average Household Size 2.19 2.30 2.49 The household count In this area has changed from 43,441 In 2010 to 45,521 In the current year, a change of IAS% annually. The five-year projection of households is 50,736, a change of 2.19% annually from the current year total. Average household size Is currently 2A9, compared to 2,48 In the year 2010. The number of families In the current year Is 24,731 In the specified area. Doft NoW rowme is &,pressed In current dollars Sourml UX, Consus Bureau, Census 2010 Surrmnary Hie 1, Earl rur 2013 and 201n, r2M CreWaTted Cauft.,; 2000 &,am Intu 201a qeagraphy October 15, 2014 1517 Centre Place Dr, Ste 250 Denton, TX 76205 Copyright@2014 Axis Realty Group WWWW W, WIN M 1� Exhibit 7 - Incentive Agreement Exhibit B The Rallyard version 2 Prepared by Alex payneThe Rallyard 608 E Hickory St, Denton, Texas, 76205, Rings: 1, 3, 5 mile radii I mile 3 miles 5 miles Median Household Income 2013 Median Household Income $26,205 $34,450 $42,524 2018 Median Household Income $28,061 $41,118 $53,287 2013-2018 Annual Rate 1.38% 3.60% 4,62% Average Household income 2013 Average Household Income $35,368 $50,518 $61,755 2018 Average Household Income $41,378 $59,265 $72,433 2013-2018 Annual Rate 3.19% 3.25% 3,24% Per Capita Income. 2013 Per Capita Income $15,780 $21,944 $24,579 2018 Per Capita Income $17,648 $25,350 $28,502 2013-2018 Annual Rate 2.26% 2.93% 3,01% Households by Income Current median household Income Is $42,524 In the area, compared to $51,314 for all U.S. households. Median household Income Is projected to be $53,287 In five years, compared to $59,580 for all U.S. households Current average household income Is $61,755 In this area, compared to $71,842 for all U.S households. Average household income Is projected to be $72,433 In five years, compared to $83,667 for all U.S. households Current per capita Income Is $24,579 In the area, compared to the U.S. per capita Income of $27,567. The per capita Income is pro"d to be $211,502 in five years, compared to $32,073 for all U.S. households Housing 2000 Total Housing Units 4,314 29,386 36,369 2000 Owner Occupied Housing Units 1,112 10,541 15,729 2000 Owner Occupied Housing Units 2,910 17,331 18,475 2000 Vacant Housing Units 292 1,514 2,165 2010 Total Housing Units 4,716 34,219 47,059 2010 Owner Occupled Housing Units 1,085 10,924 20,253 2010 Renter Occupied Housing Units 3,213 20,491 23,188 2010 Vacant Housing Units 418 2,804 3,618 2013 Total Housing Units 4,877 35,344 49,143 2013 Owner Occupied Housing Units 1,075 10,982 20,932 2013 Renter Occupied Housing Units 3,291 21,451 24,589 2013 Vacant Housing Units 510 2,911 3,622 2018 Total Housing Units 5,293 30,733 54,355 20I8 owner Occupied Housing Units 1,234 12,502 24,134 2018 Renter Occupied Housing Units 3,476 23,078 26,602 2018 Vacant Housing Units S86 3,153 3,619 Currently, 42.6% of the 49,143 housing units In the area are owner occupied; 50.0%, renter occupied; and 7.4% are vacant. Currently, In the U.S., 56.4% of the housing units In the area are owner occupied; 32.3% are renter occupied; and 11.3% are vacant. In 2010, there were 47,059 housing units In the area - 43.0% owner *ccupled, 49.3% renter occupied, and 7.7% vacant. The annual rate of change In housing units since 2010 Is 1.94%. Median home value In the area Is $171,136, compared to a median home value of $177,257 for the U.S. In five years, median value is projected to change by 3.96% annually to $207,836. Daft Moto inrmno Is exprmse,0 In current dollars "Amm. U.S. Census Bureau, Census 201.0 slannury Flla L Evi fore arots for 2013 and 2018. EM ConVefted Census 20DO data Into 2D20 9*00MPITY. October IS, 2014 F01 Moto., OfI14,114,C1, ALEX PAYNEITER1, BORAZIL 1517 Centre Place Dr., Ste 250 Denton, TX 76205 2 Cop"I hf02014Ax1sRe4d1yGroup wwwaxisre ally. biz alp xoaxisre city. biz /terWoraz11§axisre&y.biz 13 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 FINAL PROJECT PLAN Updated June 2014 Tax Increment Financing Reinvestment Zone No. I City of Denton, Texas SCHRADER & CLINE, LLC George R. Schrader Larry D. Cline 4800 Broadway, Ste A Addison, TX 75001 972 - 661 -1973 schcli(aswbell.net Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 Iff-71-MITTIMM The City of Denton, Texas proposes to establish a Tax Increment Financing Reinvestment Zone ( "TIF ") for the purpose of dedicating the increase in tax revenue generated within the TIF to provide funds for public infrastructure to encourage accelerated development and redevelopment in the downtown area of the City. The TIF consists of approximately 225.73 acres and is more fully described in Project Plan Exhibit A. The City is creating this TIF to encourage accelerated development and redevelopment in this area of the City in an effort to stimulate new higher value, higher density development which would benefit and be incentivized from the proposed public infrastructure improvements. It is expected that the TIF will exist for thirty (30) years or the date when all project costs are paid, whichever comes first. As set forth in Section 311.011 of the Tax Increment Financing Act of the Texas Tax Code Ann., the Project Plan for Tax Increment Financing Reinvestment Zone No. 1, Denton, Texas must and does include the following elements: 1. A map showing existing uses and conditions of real property in the TIF and a map showing proposed improvements to and proposed use of the property. ■ The boundaries of the TIF are shown on the map labeled Project Plan Exhibit: B; ■ Project Plan Exhibit: C shows existing land use within the TIF. Currently, the area is generally developed but contains less than ten percent residential. ■ Project Plan Exhibit: D lists and defines the public improvements being proposed for the TIF; ■ Project Plan Exhibit: E shows anticipated Future Land Use within the TIF. 1 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. ■ Any changes to codes, ordinances, or master plan as a result of the creation of the TIF will be made through the standard process and procedures of the City. 3. A list of estimated non - project costs. ■ Non - project costs within the TIF are those development costs not paid for by the TIF. These costs will include, but are not limited to, $207.5 million, which is comprised of new private development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. ■ Although not anticipated, in the process of developing the TIF, any relocation will be made through the standard process and procedures of the City. 2 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT A Boundary Description Beginning at the southwest corner of the ROW intersection of Carroll Blvd. and Sycamore, the POINT OF BEGINNING; THENCE, north along the west ROW of Carroll Blvd. to the northwest corner of the ROW intersection of Carroll Blvd. and W. Parkway Street; THENCE, east along the north ROW of W. Parkway Street to the northeast corner of the ROW intersection of W. Parkway Street and Locust; THENCE, south along the east ROW of Locust to the north ROW of McKinney; THENCE, east along the north ROW of McKinney to a point directly north of the southeast corner of the ROW intersection of McKinney and N. Bradshaw Street; THENCE, south across McKinney and continuing south along the east ROW of N. Bradshaw Street continuing directly south across E. Hickory Street to the south ROW of E. Hickory Street; THENCE, west along the south ROW of E. Hickory Street to the northeast corner of a tract in the Fred Hill Addition, Block A, Lot l; THENCE, south and east following the property line of a tract in the Fred Hill Addition, Block A, Lot 1 to the northwest corner of a 1.406 acre tract, Al 184A H. Cisco, Tract 14; THENCE, south along the west property line of a 1.406 acre tract, Al 184A H. Cisco, Tract 14 to its intersection with the north property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15; THENCE, west and south along the north and west property line of a 1.694 acre tract Al 184A H. Cisco, Tract 15 to the northwest corner of a 0.16 acre tract, Al 184A H. Cisco, Tract 20; THENCE, south along the west property line of a 0.16 acre tract, Al 184A H. Cisco, Tract 20 to the north ROW of Sycamore; THENCE, directly south across Sycamore to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the northwest corner of the Oakwood Cemetery; THENCE, south along the west property line of the Oakwood Cemetery to the north ROW of Prairie; THENCE, directly south across Prairie to the south ROW of Prairie; THENCE, west along the south ROW of Prairie to the southwest corner of the ROW intersection of Prairie and Elm; 3 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY Boundary Description THENCE, north along the west ROW of Elm to the south ROW of Sycamore; THENCE, west along the south ROW of Sycamore to the southwest corner of the ROW intersection of Sycamore and Carroll Blvd. and the POINT OF BEGINNING, and containing a total area of approximately 225.73 acres. M Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. I PRELIMINARY TIF Boundary EXHIBIT B 1 �. ,. - Centerline Streets perty Description Acreage w/or wio Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Family Townhome vacant Commercial Lots 11 WEMLOUX, This map Is a graphlc representation prepared by the City of Denton and Is Intended for use only as a reference, Data depicted 0 0 05 0 1 02 0 3 04 Is not guaranteed for accuracy and may be sulblect to revision at any time without notification, A Registered Surveyor for the State of Texas was net consulted. For Survey level accuracy, supervishon and certification of the produced data by a Registered Profe"Ifonal Land Surveyor for the State of Texas would need to be performed 5 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. I PRELIMINARY Existing Land Use EXHIBIT C Legend TIF Boundary I Centerline Streets perty Description Acreage wrier w/o Agr use Cable Company Duplex Exempt Gas Company Multifamily Phone Company Real and Commercial Single Famlly Townheme Vacant Commercial Lots oir April 16 2010 Miles Thta map Ila graphic repirftentallon prepared by the City 0 Dentonand aintended for use only as a reference, 0ma do piloted Is net g uarartived f accuracy and maybe subIect tore viis Ion at any I I mie Wthour notification. A Frogetered SuNeyor fort hie 01 006 01 02 03 01 4 State of Texas was not consulted, Far Survey revel accuracy, %Lpomli and corlIftation of the produced data by a Registered Prolessional Land surveyor for the Stale of Texas would need to be performed I !, Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT D Project Plan PROJECT ESTIMATED COST, $M Parking / Transportation 8.0 Complete Streets 7.9 Support for Downtown Projects 4.9 Utility / Drainage Improvements 4.0 TOTAL 24.8 Project Definitions Parking/Transportation: Transportation: Parking includes, but is not limited to, parking garages; surface parking; parking lighting; and parking signage and wayfinding. This project category was designed to provide adequate public facilities for transportation and to foster Transit Oriented Development (TOD) that will occur as a result of the planned transit station that will link Denton with passenger rail service to the City of Carrollton, where riders can transfer to the Dallas Area Rapid Transit (DART) system into the Dallas/ Fort Worth metroplex. The goal is to create compact, walkable, pedestrian- centered developments to enhance and act as a catalyst to spur additional development and redevelopment in the district. Complete Streets: are "multi- functional, pedestrian- oriented, aesthetically - pleasing, and safe and inviting for residents and visitors. Redeveloping the existing downtown street network into complete streets will create a pleasing public realm, which in turn supports and encourages a wide variety of new development and investment" according to the Downtown Implementation Plan. Elements of complete streets include the building to building improvements which may encompass: sidewalks, shared travel lanes (e.g. bus and bicycle), parallel and angled parking, pedestrian crosswalks, pedestrian and emergency bulb (American with Disabilities Act (ADA) accessibility), awnings, street improvements, planters, pedestrian street furniture, bike racks and pedestrian lighting. Downtown Projects: may include grants, loans and services for public and private development. Eligible TIF project costs are not limited to public uses and may also include projects that involve: historic preservation, demolition, environmental remediation and economic development grants. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. The chapter also includes a provision for the use of City employees, facilities and services. An example of a City service may include additional public safety personnel to serve the increased population created by the transit station and the surrounding transit oriented development. Solid 7 Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN — DENTON TIF NO. 1 PRELIMINARY EXHIBIT D Project Plan waste and recycling services tailored to serve the downtown area is another example of a public service. Pursuant to the Texas Local Government Code, section 272.001, the City of Denton may utilize City -owned property that is located in a reinvestment zone to facilitate economic projects which the City and TIF Board deem appropriate and desirable. The City may acquire, lease, sell or otherwise transfer property to accomplish the public purpose of economic development that is consistent with the Project Plan. Such projects may include public - private partnerships, transit - oriented developments, or the recruitment of specific industries including, but not limited to, hi -tech or emerging technology companies, local start -up businesses, artesian or "maker" industries, the creative sector, bakeries, microbreweries, micro- distilleries, wineries, grocery stores, or other industries that the TIF Board and the City Council deem desirable. Utility Drainage: The downtown TIF district has an aging infrastructure and a number of properties that are situated in the floodplain making proper utility drainage an important component of the project plan. Utility drainage encompasses the physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities /systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices designed or intended to carry, direct, detain or otherwise control stormwater," according the Denton Development Code. Projects may include one or more categories that may be leveraged as an incentive for development in the TIF district. An example of such a project, that would include both the parking /transportation and the downtown project categories, is a public private partnership for the construction of a parking garage and mixed use development that includes a public investment for additional parking for the public. N. Exhibit 7 - Incentive Agreement Exhibit C PROJECT PLAN - DENTON TIF NO. 1 PRELIMINARY EXHIBIT E Future Land Use Exhibit 7 - Incentive Agreement Axis Realty Group ^ �, � Fdet T���� Caxrrinefi _ A�iipG'��:1�4Y1 @iFtdt�tl:c�r� NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® COMMERCIAL LEASE AGREEMENT between Rail Yard Partners, LTD (Landlord) and City of Denton (Tenant) TABLE OF CONTENTS Article 1. Defined Terms 2. Lease and Term 3. Rent and Security Deposit 4. Taxes 5. Insurance and Indemnity 6. Use of Premises 7. Property Condition, Maintenance, Repairs and Alterations 8. Damage or Destruction 9. Condemnation 10. Assignment and Subletting 11. Default and Remedies 12. Landlord's Contractual Lien 13. Protection of Lenders 14. Environmental Representations and Indemnity 15. Professional Service Fees 16. Miscellaneous and Additional Provisions Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940,891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLooix.com Exhibit 7 - Incentive Agreement COMMERCIAL LEASE AGREEMENT [Throughout this Lease, complete all blanks and check all boxes that apply. Blanks not completed and boxes not checked do not apply.] For good and valuable consideration, the parties to this Commercial Lease Agreement (the "Lease ") agree as follows: ARTICLE ONE DEFINED TERMS As used in this Lease, the terms set forth in this Article One have the following meanings: 1.01 Effective Date: The last date beneath the signatures of Landlord and Tenant on this Lease. 1.02 Landlord: Rail Yard Partners LTD Address: 525 S. Loop 288, Suite 105 Denton TX 76205 Telephone: (940) 382 -5000 Fax: Email: 1.03 Tenant: City of Denton Address: 215 E. McKinney Street Denton TX 76201 Telephone: Email: Fax: 1.04 Premises [include Suite or Unit No., if applicable]: 608 E Hickory St, Ste 128 Denton TX 76201 A. Building Name: The Rail B. Street address: 608 E. Hickory St, Ste 128 Denton, TX 76201 in Denton County, Texas. C. Legal description: The property on which the Premises are situated is described as:East Hickory Addition, Block A, Lots 1 and 2 and may be more particularly described on the attached Exhibit "A ", Survey or Legal Description (the "Property "). The term "Property" includes the land described on Exhibit "A ", and any improvements on the land (including the Premises). D. Floor Plan or Site Plan: Being a floor area of approximately 9216 square feet, or a land area of approximately square feet or approximately acres, and being more particularly shown in outline form on the attached Exhibit "B ", Floor Plan or Site Plan. COMMERCIAL LEASE AGREEMENT - Page 2 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement E. Tenant's Pro Rata Share: 32.532 %. 1.05 Term: 5 years and months beginning on March 1 , 2016 (the "Commencement Date ") and ending on February 28 2021 (the "Expiration Date "). Unless the context requires otherwise, references in this Lease to the "Term" include any renewal or extension of this Lease. [See Addendum "A ", Renewal Options, if applicable]. 1.06 Base Rent: Base Rent is due and payable in monthly installments during the Term of this Lease as set forth in this Section. Base Rent and all other sums due or payable by Tenant to Landlord under this Lease are collectively referred to in this Lease as the "Rent." Base Rent Payment Schedule On or before the first day of each month during the Term of this Lease, Tenant shall pay monthly installments of Base Rent as follows: Dates Monthly Base Rent From March 1, 2016 to February 28, 2017 $ 7,490.67; From March 1, 2017 to 02/28/2018 $ 7,767.15; From March 1, 2018 to 02/28/2019 $ 8,049.16; From 03/01/2019 to 02/28/2020 $ 8,336.81; From 03/01/2020 to February 28, 2021 $ 8,630.21; From to $ [Rent for any Renewal Term is determined pursuant to a separate Addendum, if applicable, and should not be set forth here.] 1.07 Percentage Rental Rate: %. [See Addendum "D ", Percentage Rental and Gross Sales Reports, if applicable] 1.08 Security Deposit: $ 17,280. 00 (due upon execution of this Lease). [See Section 3.041 1.09 Expense Reimbursements: A. Tenant shall pay Landlord as additional Rent (or pay the charges directly to the service provider, if applicable) the following expenses (or a portion of the expenses, if applicable) (each an "Expense Reimbursement' and collectively the "Expense Reimbursements ") that are incurred by or assessed against the Premises (as each of these terms is defined in this Lease) [check all boxes that apply]: ❑ Real Estate Taxes; ❑ Insurance Premiums; ❑ Common Area Maintenance (CAM) Expenses; ❑x Operating Expenses; ❑ Roof and Structural Maintenance Expenses; ❑ Electricity; ❑ Cable; ❑ Gas; ❑ Internet Access; COMMERCIAL LEASE AGREEMENT - Page 3 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www,zir)Loaix.com City of Denton Exhibit 7 - Incentive Agreement ® Water; ® Sewer; ❑ Telephone; ❑ Trash Removal; and ❑ All other Utilities. B. Expense Definitions. 1. Real Estate Taxes. "Real Estate Taxes" means all general real estate taxes, ad valorem taxes, general and special assessments, parking surcharges, rent taxes, and other similar governmental charges levied against or applicable to the Property for each calendar year. 2. Insurance Premiums. "Insurance Premiums" means all Landlord's insurance premiums attributable to the Property, including but not limited to insurance for fire, casualty, general liability, property damage, medical expenses, extended coverage, and loss of rents coverage for up to 12 months' Rent. 3. Common Area Maintenance Expenses. "Common Area Maintenance Expenses" or "CAM Expenses" means all costs of maintenance, inspection and repairs of the Common Areas of the Property, including, but not limited to, those costs for security, lighting, painting, cleaning, decorations and fixtures, Utilities, ice and snow removal, trash disposal, project signs, roof repairs, pest control, project promotional expenses, property owners' association dues, wages and salary costs of maintenance personnel, and other expenses benefiting all the Property that may be incurred by Landlord, in its discretion, including sales taxes and a reasonable service charge for the administration thereof. The term "Common Areas" is defined as that part of the Property intended for the collective use of all tenants including, but not limited to, the parking areas, driveways, loading areas, landscaping, gutters and downspouts, plumbing, electrical systems, HVAC systems, roof, exterior walls, sidewalks, malls, promenades (enclosed or otherwise), meeting rooms, doors, windows, corridors and public rest rooms. CAM Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Landlord's original investment, the cost of tenant improvements, real estate brokers' fees, advertising of space for lease, or interest or depreciation on capital investments. 4. Operating Expenses. "Operating Expenses" means all costs of ownership, building management, maintenance, repairs and operation of the Property, including but not limited to Real Estate Taxes, Insurance Premiums, CAM Expenses, reasonable management fees, wages and salary costs of building management personnel, overhead and operational costs of a management office, janitorial, Utilities, and professional services such as accounting and legal fees. Operating Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Landlord's original investment, the cost of tenant improvements, real estate brokers' fees, advertising of space for lease, or interest or depreciation on capital investments. 5. Roof and Structural Maintenance Expenses. "Roof and Structural Maintenance Expenses" means all costs of maintenance, repair and replacement of the roof, roof deck, (lashings, skylights, foundation, floor slabs, structural components and the structural soundness of the building in general. 6. Utilities. "Utilities" means charges for electricity, cable, gas, Internet access, water, sewer, telephone, trash removal, and any other services that are commonly understood to be utilities, including connection charges. 7. Other Terms. Other terms that are not expressly defined are intended to have the meanings given those terms in common usage. COMMERCIAL LEASE AGREEMENT - Page 4 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zoForm® by zoo -ogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 7 - Incentive Agreement C. Expense Reimbursement Limitations. The amount of Tenant's Expense Reimbursement will be determined by one of the following methods as described and defined below [check only one]: ❑ Base Year Adjustment; ❑ Expense Stop Adjustment; ® Pro Rata Adjustment; ❑ Fixed Amounts; or ❑ Net Lease. D. Expense Reimbursement Limitation Definitions. 1. Base Year Adjustment. If "Base Year Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of increases in the applicable expenses (those checked in Section 1.09.A. above) for the Property for any calendar year during the Term or during any Extension of this Lease, over such amounts paid by Landlord for the Base Year (the "Base Year "). 2. Expense Stop Adjustment. If "Expense Stop Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of increases in the applicable expenses (those checked in Section 1.09.A. above), for the Property for any calendar year during the Term or during any Extension of this Lease, over $ per square foot of floor area (as set forth in Section 1.04D) per year. 3. Pro Rata Adjustment. If "Pro Rata Adjustment" has been checked above, Tenant shall pay to Landlord as additional Rent Tenant's Pro Rata Share of the total amount of the applicable expenses (those checked in Section 1.09.A. above) for every calendar year during the Term and during any extension of this Lease. 4. Fixed Amounts. If "Fixed Amounts" has been checked above, Tenant shall pay to Landlord as additional Rent the following monthly amounts (regardless of whether they have been checked in Section 1.09.A. above) as Tenant's Expense Reimbursements to Landlord for the following expenses that are incurred by or assessed against the Property: Real Estate Taxes $ per month. Insurance Premiums $ per month. CAM Expenses $ per month. Operating Expenses $ per month. Roof & Structural Maintenance Expenses $ per month. Electricity $ per month. Cable $ per month. Gas $ per month. Internet Access $ per month. Water $ per month. Sewer $ per month. Telephone $ per month. Trash Removal $ per month. All Other Utilities $ per month. 5. Net Lease. If "Net Lease" has been checked above, then notwithstanding anything contained in this Lease to the contrary in Section 6.02, Article Seven or otherwise, Tenant shall be responsible for paying Tenant's Pro Rata Share of all costs of compliance with laws, ownership, maintenance, repairs, replacements, operation of the Premises, and operation of the Property, including but not limited to all costs of Real Estate Taxes, Insurance Premiums, Common Area Maintenance Expenses, Operating Expenses, Roof and Structural Maintenance Expenses, and all Utilities (regardless of whether they have been checked in Section 1.09.A. above). COMMERCIAL LEASE AGREEMENT - Page 5 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement E. First Payment. The sum of the Monthly Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there is a free rent period), and the initial estimated monthly Expense Reimbursement payments (before adjustments) is set forth below. Upon the execution of this Lease, in addition to the Security Deposit, Tenant shall pay the first monthly payment in the sum of the amounts set forth below. Initial Monthly Base Rent $ 7,490.67 Real Estate Taxes $ Insurance Premiums $ CAM Expenses $ Operating Expenses $ 3,456.00 Roof & Structural Maintenance Expenses $ Electricity $ Cable $ Gas $ Internet Access $ Water $ Sewer $ Telephone $ Trash Removal $ All Other Utilities $ Total $ 10,946.67 [Complete the amount of the first Base Rent payment to be due, as well as estimated amounts of any other monthly payments that start at the beginning of the Term of this Lease. Put N/A or strike through the rest. Any estimated amounts are subject to adjustment pursuant to other provisions of this Lease. If any expense payments are not due at the beginning of the Term, they may begin later in the Term pursuant to other provisions of this Lease.] Expense Reimbursement Payments. Tenant agrees to pay any end -of -year lump sum Expense Reimbursement within 30 days after receiving an invoice from Landlord. Any time during the Term, Landlord may direct Tenant to pay monthly an estimated portion of the projected future Expense Reimbursement amount. Any such payment directed by Landlord will be due and payable monthly on the same day that the Base Rent is due. Landlord may, at Landlord's option and to the extent allowed by applicable law, impose a Late Charge on any Expense Reimbursement payments that are not actually received by Landlord on or before the due date, in the amount and manner set forth in Section 3.03 of this Lease. Any Expense Reimbursements relating to partial calendar years will be prorated accordingly. If Tenant's Pro Rata Share is not expressed in Section 1.04.E of this Lease, then Tenant's Pro Rata Share of such Expense Reimbursements will be based on the square footage of useable area contained in the Premises in proportion to the square footage of useable building area of the Property. Tenant may audit or examine those items of expense in Landlord's records that relate to Tenant's obligations under this Lease. Landlord shall promptly refund to Tenant any overpayment that is established by an audit or examination. If the audit or examination reveals an error of more than 5% over the figures billed to Tenant, Landlord shall pay the reasonable cost of the audit or examination. G. ❑ Gross -Up Provisions. [Check this only if applicable.] If the Property is a multi- tenant building and is not fully occupied during the Base Year or any portion of the Term, an adjustment will be made in computing the variable costs for the Base Year and each applicable calendar year of the Term. Variable costs will include only those items of expense that vary directly proportionately to the occupancy of the Property. Variable costs that are included in the CAM Expenses, Operating Expenses and Utilities will be increased proportionately to the amounts that, in Landlord's reasonable judgment, would have been incurred had 95% of the useable area of the Property been occupied during those years. COMMERCIAL LEASE AGREEMENT - Page 6 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement 1.10 Permitted Use: Office [See Section 6.011 1.11 Party to whom Tenant is to deliver payments under this Lease is the Landlord, unless one of the following boxes is checked, in which case Tenant shall deliver payments to: ❑ Principal Broker, or ❑ Other [Set forth name and address, if other than Landlord or Principal Broker]: 1.12 Principal Broker: Axis Realty Group is acting as the agent for Landlord exclusively, unless one of the following boxes is checked, in which case Principal Broker is acting as: ❑ the agent for Tenant exclusively, or ❑ an intermediary. 1.13 Principal Broker's Address: 1517 Centre Place Dr Denton TX 76205 Telephone: (940)891 -2947 Fax: (940) 891-2948 Email: alex @axisrealty.biz Cooperating Broker: is acting as the agent for Tenant exclusively, which case Cooperating Broker is acting as; intermediary. Cooperating Broker's Address: unless one of the following boxes is checked, ❑ the agent for Landlord exclusively, or ❑ Telephone: Fax: Email: 1.14 The Professional Service Fee (the "Fee "): Iti1 an A. The percentages applicable in Section 15.01 and Section 15.02 to leases will be -% of the Base Rent to Principal Broker and % of the Base Rent to Cooperating Broker. If the Fee is based on an amount per square foot, that amount is $ per square foot to Principal Broker and $ per square foot to Cooperating Broker. The Fee will be paid in the manner described in Subsection 15.01A (half on execution and half on the Commencement Date), unless this box ❑ is checked, in which case the Fee will be paid in the manner described in Subsection 15.01 B (monthly). B. The percentages applicable in Section 15.03 in the event of a sale will be % to Principal Broker and % to Cooperating Broker. 1.15 Disclosure of Dual Capacity as Broker and Principal. [Complete if applicable] A. is a licensed Texas real estate broker and is acting in a dual capacity as broker for Landlord and as a principal in this transaction, as he or she may be Landlord (or one of the owners of Landlord). B. is a licensed Texas real estate broker and is acting in a dual capacity as broker for Tenant and as a principal in this transaction, as he or she may be Tenant (or one of the owners of Tenant). 1.16 Exhibits and Addenda. Any exhibit or addendum attached to this Lease (as indicated by the boxes checked below) is incorporated as a part of this Lease. Any term not specifically defined in an Addendum will have the same meaning given to it in the body of this Lease. ® Exhibit "A" Survey and /or Legal Description of the Property ❑x Exhibit "B" Floor Plan and /or Site Plan ® Exhibit "C" Information About Brokerage Services ® Exhibit "D" Other Grant Agreement COMMERCIAL LEASE AGREEMENT - Page 7 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement • Addendum "A" Renewal Options • Addendum "B" Construction of Improvements by Landlord ❑ Addendum "C" Construction of Improvements by Tenant ❑ Addendum "D" Percentage Rental and Gross Sales Reports ❑ Addendum "E" Right of First Refusal for Additional Space ❑ Addendum "F" Guaranty ® Addendum "G" Rules and Regulations ❑ Addendum "H" Rooftop Lease ❑ Addendum "I" Parking ❑ Addendum "J" Additional Provisions Addendum ❑x Addendum "K" Other Work Letter ARTICLE TWO LEASE AND TERM 2.01 Lease of Premises for Term. Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord for the Term stated in Section 1.05. The Commencement Date is the date specified in Section 1.05, unless advanced or delayed under any provision of this Lease. 2.02 Delays in Commencement. Landlord will not be liable to Tenant if Landlord does not deliver possession of the Premises to Tenant on the Commencement Date specified in Section 1.05 above. Landlord's non - delivery of possession of the Premises to Tenant on the Commencement Date will not affect this Lease or the obligations of Tenant under this Lease. However, the Commencement Date will be delayed until possession of the Premises is delivered to Tenant. The Term will be extended for a period equal to the delay in delivery of possession of the Premises to Tenant, plus the number of days necessary for the Term to expire on the last day of a month. If Landlord does not deliver possession of the Premises to Tenant within 60 days after the Commencement Date specified in Section 1.05, Tenant may cancel this Lease by giving a written notice to Landlord at any time after the 60 -day period ends, but before Landlord actually delivers possession of the Premises to Tenant. If Tenant gives such notice, this Lease will be canceled effective as of the date of its execution, any prepaid amounts will be reimbursed to Tenant, and no party will have any rights or obligations under this Lease. If Tenant does not give such notice within the time specified, Tenant will have no right to cancel this Lease, and the Term will commence upon the delivery of possession of the Premises to Tenant. If delivery of possession of the Premises to Tenant is delayed, Landlord and Tenant shall, upon such delivery, execute an amendment to this Lease setting forth the revised Commencement Date and Expiration Date of the Term. 2.03 Early Occupancy. If Tenant occupies the Premises before the Commencement Date, Tenant's occupancy of the Premises will be subject to all of the provisions of this Lease. Early occupancy of the Premises will not advance the Expiration Date. Unless otherwise provided in this Lease, Tenant shall pay Base Rent and all other charges specified in this Lease for the period of occupancy. 2.04 Holding Over. Tenant shall vacate the Premises immediately upon the expiration of the Term or earlier termination of this Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all damages incurred by Landlord as a result of any delay by Tenant in vacating the Premises. If Tenant does not vacate the Premises upon the expiration of the Term or earlier termination of this Lease, Tenant's occupancy of the Premises will be a day -to -day tenancy, subject to all of the terms of this Lease, except that the Base Rent during the holdover period will be increased to an amount that is one - and - one -half (11/2) times the Base Rent in effect on the expiration or termination of this Lease, computed on a daily basis for each day of the holdover period, plus all additional sums due under this Lease. This Section will not be construed as Landlord's consent for Tenant to hold over or to extend this Lease. COMMERCIAL LEASE AGREEMENT - Page 8 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by ziplogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zit)Loaix.com City of Denton Exhibit 7 - Incentive Agreement ARTICLE THREE RENT AND SECURITY DEPOSIT 3.01 Manner of Payment. Tenant shall pay the Rent to Landlord at the address set forth in Section 1.02, unless another person is designated in Section 1.11, or to any other party or address Landlord may designate in any written notice delivered to Tenant. Landlord may designate, in a written notice delivered to Tenant, the party authorized to receive Rent and act on behalf of Landlord to enforce this Lease. Any such authorization will remain in effect until it is revoked by Landlord in a subsequent written notice delivered to Tenant. Any payments made to a third party designated by Landlord will be deemed made to Landlord when received by the designated third party. All sums payable by Tenant under this Lease, whether or not expressly denominated as Rent, will constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all other purposes. 3.02 Time of Payment. Upon execution of this Lease, Tenant shall pay the installment of Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there is a free rent period). On or before the first day of the next month and each month thereafter, the installment of Base Rent and other sums due under this Lease will be due and payable, in advance, without off -set, deduction or prior demand. Tenant shall cause payments to be properly mailed or otherwise delivered so as to be actually received (and not merely deposited in the mail) by Landlord (or the party identified in Section 1.11, or any other third party designated by Landlord) on or before the due date. If the Term commences or ends on a day other than the first or last day of a calendar month, the rent for any partial calendar month following the Commencement Date or preceding the end of the Term will be prorated. Tenant shall pay any such prorated portion for a partial calendar month at the beginning of the Term on the Commencement Date. Tenant shall pay any such prorated portion for a partial calendar month at the end of the Term on the first day of that calendar month. 3.03 Late Charges. Tenant's failure to promptly pay sums due under this Lease may cause Landlord to incur unanticipated costs. The exact amount of those costs is impractical or extremely difficult to ascertain. The costs may include, but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by any ground lease or deed of trust encumbering the Premises. Payments due to Landlord under this Lease are not an extension of credit. Therefore, if any payment under this Lease is not actually received on or before the due date (and not merely deposited in the mail), Landlord may, at Landlord's option and to the extent allowed by applicable law, impose a Late Charge on any late payments in an amount equal to 10% of the amount of the past due payment (the "Late Charge ") after the payment is more than five days past due. A Late Charge may be imposed only once on each past due payment. Any Late Charge will be in addition to Landlord's other remedies for nonpayment of Rent. If any check tendered by Tenant under this Lease is dishonored for any reason, Tenant shall pay to Landlord a dishonored check fee of $30.00, plus (at Landlord's option) a Late Charge as provided above until Good Funds (defined below) are received by Landlord. The parties agree that any Late Charge and dishonored check fee represent a fair and reasonable estimate of the costs Landlord will incur by reason of the late payment or dishonored check. If there are any Late Charges, dishonored check fees, installments of Base Rent, and any other unpaid charges or reimbursements due to Landlord, then Landlord may apply any payments received from Tenant to any amounts due in any order Landlord may choose. Notwithstanding the foregoing, Landlord will not impose a Late Charge as to the first late payment in any calendar year, unless Tenant fails to pay the late payment to Landlord within three business days after the delivery of a written notice from Landlord to Tenant demanding the late payment be paid. However, Landlord may impose a Late Charge without advance notice to Tenant on any subsequent late payment in the same calendar year. 3.04 Security Deposit. Upon execution of this Lease, in addition to the installment of Base Rent due under Section 3.02, and in addition to any other amounts that are due from Tenant upon the execution of this Lease, Tenant shall deliver to Landlord a Security Deposit in the amount stated in Section 1.08. Landlord may apply all or part of the Security Deposit to any unpaid Rent, and damages and charges for which Tenant is legally liable under this Lease, and damages and charges that result from a breach of this Lease, including but not limited to, the cost to cure Tenant's failure to comply with Section 7.05 and any other provision that requires Tenant to leave the Premises in a certain condition upon the expiration or termination of this Lease. If Landlord uses any part of the Security Deposit, Tenant shall COMMERCIAL LEASE AGREEMENT - Page 9 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Looix.com City or Denton Exhibit 7 - Incentive Agreement restore the Security Deposit to its full amount within 10 days after Landlord's written demand. Tenant's failure to restore the full amount of the Security Deposit within the time specified will be a default under this Lease. No interest will be paid on the Security Deposit. Landlord will not be required to keep the Security Deposit separate from its other accounts, and no trust relationship is created with respect to the Security Deposit. After the expiration of this Lease, Landlord shall refund the unused portion of the Security Deposit, if any, to Tenant within 60 days after the date Tenant surrenders possession of the Premises and provides a written notice to Landlord of Tenant's forwarding address for the purpose of refunding the Security Deposit. The provisions of this Section will survive the expiration or termination of this Lease. 3.05 Good Funds Payments. If any two or more payments by check from Tenant to Landlord for Rent are dishonored and returned unpaid, thereafter Landlord may, at Landlord's option, by the delivery of a written notice to Tenant, require that all future payments of Rent for the remaining Term of this Lease must be made by cash, certified check, cashier's check, official bank check, money order, wire transfer or automatic electronic funds transfer ( "Good Funds "), and that the delivery of Tenant's personal or corporate check will no longer constitute payment of Rent under this Lease. Any acceptance by Landlord of a payment for Rent by Tenant's personal or corporate check thereafter will not be construed as a waiver of Landlord's right to insist upon payment by Good Funds as set forth in this Section. ARTICLE FOUR TAXES 4.01 Payment by Landlord. Landlord shall pay the real estate taxes on the Premises during the Term, subject to reimbursement by Tenant pursuant to any other provision in this Lease. 4.02 Improvements by Tenant. If the real estate taxes levied against the Premises for the year in which the Term commences are increased as a result of any additions or improvements made by Tenant, or by Landlord at Tenant's request, Tenant shall pay to Landlord upon demand the amount of the increase and continue to pay the increase during the Term. Landlord shall use reasonable efforts to obtain from the tax assessor a written statement of the amount of the increase due to such additions or improvements. 4.03 Joint Assessment. If the real estate taxes are assessed against the Premises jointly with other property that is not part of the Premises, the real estate taxes applicable to the Premises will be equal to the amount bearing the same proportion to the aggregate assessment that the total square feet of building area in the Premises bears to the total square feet of building area included in the joint assessment. If there are no improvements on the Property or the other property, then land area will be used instead of building area for the calculation of the proportional assessment. If there are improvements on one of the jointly assessed properties but not on the other property, then the calculation of the proportional assessment must be done in a reasonable manner. 4.04 Personal Property Taxes. Tenant shall pay all taxes assessed against trade fixtures, furnishings, equipment, inventory, products, or any other personal property belonging to Tenant. Tenant shall use reasonable efforts to have Tenant's property taxed separately from the Premises. If any of Tenant's property is taxed with the Premises, Tenant shall pay the taxes for Tenant's property to Landlord within 15 days after Tenant receives a written statement from Landlord for the property taxes. 4.05 Waiver of Right to Protest Taxes. Unless otherwise provided in this Lease: (i) Landlord retains the right to protest the tax assessment of the Property, and Tenant waives the right to protest; and (ii) Tenant waives Landlord's obligation to provide Tenant with a notice of the tax valuation of the Property. ARTICLE FIVE INSURANCE AND INDEMNITY 5.01 Property Insurance. During the Term, Landlord shall maintain insurance policies covering damage to the Premises in an amount or percentage of replacement value as Landlord deems reasonable in relation to the age, location, type of construction and physical condition of the Premises COMMERCIAL LEASE AGREEMENT - Page 10 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zinLooix.com City of Denton Exhibit 7 - Incentive Agreement and the availability of insurance at reasonable rates. The policies will provide protection against risks and causes of loss that Landlord reasonably deems necessary. Landlord may, at Landlord's option, obtain insurance coverage for Tenant's fixtures, equipment and improvements in or on the Premises. Promptly after the receipt of a written request from Tenant, Landlord shall provide a certificate of insurance showing the insurance coverage then in effect. Tenant shall, at Tenant's expense, obtain and maintain insurance on Tenant's fixtures, equipment and improvements in or on the Premises as Tenant reasonably deems necessary to protect Tenant's interest. Any property insurance carried by Landlord or Tenant will be for the sole benefit of the party carrying the insurance and under its sole control. 5.02 Increases in Premiums. Tenant shall not conduct or permit any operation or activity, or store or use any materials, in or around the Premises that would cause suspension or cancellation of any insurance policy carried by Landlord. If Tenant's use or occupancy of the Premises causes Landlord's insurance premiums to increase, then Tenant shall pay to Landlord, as additional Rent, the amount of the increase within 10 days after Landlord delivers written evidence of the increase to Tenant. 5.03 Liability Insurance. During the Term, Tenant shall maintain a commercial general liability insurance policy, at Tenant's expense, insuring Tenant against liability arising out of the use or occupancy of the Premises, and naming Landlord as an additional insured. The initial amounts of the insurance must be at least $1,000,000 or, if the following blank is completed $ for Each Occurrence, $2,000,000 or, if the following blank is completed $ General Aggregate per policy year, and $10,000 for Medical Expense. If Tenant's liability insurance coverage is less than $5,000,000, and if this box ❑ is checked, then Tenant must also maintain a commercial liability umbrella policy in amount to provide a combination of liability insurance coverage to equal a $5,000,000 total limit. The coverage amounts will be subject to periodic increases as Landlord may reasonably determine from time to time. The amounts of the insurance will not limit Tenant's liability or relieve Tenant of any obligation under this Lease. The policies must contain cross - liability endorsements and must insure Tenant's performance of the indemnity provisions of Section 5.04. The policies must contain a provision that prohibits cancellation or modification of the policy except upon 30 days' prior written notice to Landlord. Tenant shall deliver a copy of the policy or certificate of insurance to Landlord before the Commencement Date and before the expiration of the policy during the Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant's expense. 5.04 Indemnity. Landlord will not be liable to Tenant or to Tenant's employees, agents, invitees or visitors, or to any other person, for any injury to persons or damage to property on or about the Premises or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant, Tenant's employees, subtenants, agents, licensees or concessionaires or any other person entering the Premises under express or implied invitation of Tenant, or arising out of the use of the Premises by Tenant and the conduct of Tenant's business, or arising out of any breach or default by Tenant in the performance of Tenant's obligations under this Lease. Tenant will not be liable for any injury or damage caused by the negligence or misconduct of Landlord, or Landlord's employees or agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss, expense or damage arising out of such damage or injury. 5.05 Waiver of Subrogation. Each party to this Lease waives any and every claim that arises or may arise in its favor against the other party during the Term of this Lease for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Premises, to the extent the loss or damage is covered by and recoverable under valid and collectible insurance policies. These mutual waivers are in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties. Inasmuch as these mutual waivers will preclude the assignment of any such claim by way of subrogation to an insurance company (or any other person), each party agrees to immediately give to each insurance company that has issued an insurance policy to such party written notice of the terms of such mutual waivers, and to cause the policies to be endorsed to prevent the invalidation of the insurance coverage by reason of these waivers. COMMERCIAL LEASE AGREEMENT - Page 11 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLociix.com City of Denton Exhibit 7 - Incentive Agreement ARTICLE SIX USE OF PREMISES 6.01 Permitted Use. Tenant may use the Premises only for the Permitted Use stated in Section 1.10. Tenant acknowledges that: (1) the current use of the Premises or the improvements located on the Premises, or both, may not conform to city ordinances or restrictive covenants with respect to the permitted use, zoning, height limitations, setback requirements, minimum parking requirements, coverage ratio of improvements to land area, and other matters that may have a significant impact upon the Tenant's intended use of the Premises; (ii) Tenant has independently investigated and verified to Tenant's satisfaction the extent of any limitations or non - conforming uses of the Premises; and (iii) Tenant is not relying upon any representations of Landlord or the Brokers with respect to any 4w such matters. L "tar d o-ckno w ItAl t S +WdIA ''5' 1 Y14'evt,-1' _f > WkV6 6L , rd 6.02 Compliance with Laws. Tenant shall comply with all governmental laws, ordinances and Premises, and will comply with all governmental �w✓" t"11 IY regulations applicable to the use of the promptly orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Premises, all at Tenant's sole expense, including any expense or cost resulting from the construction or installation of fixtures and improvements or other accommodations ham,• "'t o¢tt, for handicapped or disabled persons required for compliance with governmental laws and regulations, including but not limited to the Texas Architectural Barriers Act (the "TABA ") and the Americans with Ce^fdri Disabilities Act (the "ADA "). To the extent any alterations to the Premises are required by the TABA, 6)pum� the ADA or other applicable laws or regulations, Tenant shall bear the expense of the alterations. To the extent any alterations to areas of the Property outside the Premises are required by the TABA, the b ra > m ADA or other applicable laws or regulations (for "path of travel" requirements or otherwise), Landlord shall bear the expense of the alterations. , {� 6.03 Certificate of Occupancy. If required, Tenant shall apply for Certificate of Occupancy from the municipality in which the Property is located before the Commencement Date, and obtain a Certificate rev' " t of Occupancy before Tenant occupies the Premises. If Tenant is unable to obtain a Certificate of C' Occupancy after making an application and diligently pursuing it, then Tenant may terminate this Lease by delivering a written notice to Landlord, unless either Landlord or Tenant is willing and able to cure the defects that prevented the issuance of the Certificate of Occupancy. Either Landlord or Tenant may cure any such defects, at their own expense, including any repairs, replacements, or installations of any items that are not presently existing on the Premises, but neither of them have any obligation to do so (unless another provision of this Lease states otherwise). If Tenant delivers a written termination notice to Landlord under this Section, and then any defects are cured and a Certificate of Occupancy is issued within 15 days after Tenant delivered the notice, then this Lease r; will remain in force. If this Lease is terminated because Landlord and Tenant cannot get a Certificate (.[ of Occupancy, then Landlord will return to Tenant any prepaid rent and any Security Deposit, and the, parties will have no further obligations under this Lease. References in this Lease to a "Certificate of Occupancy" mean a Certificate of Occupancy sufficient to allow the Tenant to occupy the Premises for the Permitted Use. 6.04 Signs. Without the prior written consent of Landlord, Tenant may not place any signs, ornaments or other objects on the Premises or the Property, including but not limited to the roof or exterior of the building or other improvements on the Property, or paint or otherwise decorate or deface the exterior of the building or other improvements on the Property. Any signs installed by Tenant must conform to applicable laws, deed restrictions, and other applicable requirements. Tenant must remove all signs, decorations and ornaments at the expiration or termination of this Lease, and must repair any damage and close any holes caused by installation or removal. 6.05 Utility Services. Unless otherwise provided in this Lease, Tenant shall pay the cost of all Utilities used for the Premises, and the cost of replacing light bulbs and tubes. Unless otherwise required by law, Landlord is the party entitled to designate utility and telecommunication service providers to the Property and the Premises. Landlord may, at Landlord's option, allow Tenant to select the provider. If Tenant selects the provider, any access or alterations to the Property or the Premises necessary for the Utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold or delay. If Landlord incurs any utility or connection charges that COMMERCIAL LEASE AGREEMENT - Page 12 ©NTCAR 2014 -- Form No. 2 (3/2014) Produced with zipFomi6 by zlpLogiz 16070 Fifteen Mae Road, Fraser, Michigan 46026 www zloloa1XSOm (city of Denton Exhibit 7 - Incentive Agreement Tenant is responsible to pay and Landlord pays the charges, Tenant shall reimburse Landlord immediately upon receipt of a written notice from Landlord stating the amount of the charges. 6.06 Landlord's Access. Landlord and Landlord's agents will have the right to, upon reasonable advance notice, and without unreasonably interfering with Tenant's business, enter the Premises: (a) to inspect the general condition and state of repair of the Premises, (b) to make repairs required or permitted under this Lease, (c) to show the Premises or the Property to any prospective tenant or purchaser, and (d) for any other reasonable purpose. If Tenant changes the locks on the Premises, Tenant must provide Landlord with a copy of each separate key upon Landlord's request. During the last 150 days of the Term, Landlord and Landlord's agents may erect signs on or about the Premises advertising the Premises for lease or for sale. 6.07 Possession. If Tenant pays the Rent, properly maintains the Premises, and complies with all other terms of this Lease, Tenant may occupy and enjoy the Premises for the full Term, subject to the provisions of this Lease. 6.08 Exemptions from Liability. Landlord will not be liable for any damage to the business (including any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Tenant, Tenant's employees, invitees or customers, or for any injury to Tenant or Tenant's employees, invitees, customers or any other person in or about the Premises, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Premises or other portions of the Property, or from other sources or places; or (d) any act or omission of any other occupant of the Property. The provisions of this Section will not, however, exempt Landlord from liability for Landlord's gross negligence or willful misconduct. ARTICLE SEVEN PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS 7.01 Property Condition. Except as disclosed in writing by Landlord to Tenant before the execution of this Lease, to the best of Landlord's actual knowledge: (i) the Premises have no known latent structural or construction defects of a material nature; and (ii) none of the improvements to the Premises have been constructed with materials known to be a potential health hazard to occupants of the Premises. Unless otherwise expressly set forth in this Lease, Landlord represents that on the Commencement Date (and for a period of 30 days thereafter): (a) the fixtures and equipment serving the Premises are in good operating condition, including the plumbing, electrical and lighting systems, any fire protection sprinkler system, the HVAC (defined below) systems and equipment, the roof, skylights, doors, overhead doors, windows, dock levelers and elevators; and (b) the interior of the Premises is in good condition. Tenant will have a period of 30 days after the Commencement Date to inspect the Premises and notify Landlord in writing of any defects and maintenance, repairs or replacements required to the above named fixtures, equipment and interior. Within a reasonable period of time after the timely receipt of any such written notice from Tenant, Landlord shall, at Landlord's expense, correct the defects and perform the maintenance, repairs and replacements. 7.02 Acceptance of Premises. Tenant has inspected, or has had an opportunity to inspect, the Premises, before the execution of this Lease. Tenant has determined that the Premises may be used for the Permitted Use. Subject to the provisions in Section 7.01, and any other express obligations of Landlord in this Lease to construct any improvements, make repairs, or correct defects, Tenant agrees to accept the Premises in "AS IS" condition and with all faults (other than latent defects). To the extent permitted by applicable law, Tenant waives any implied warranties of Landlord as to the quality or condition of the Premises or the Property, or as to the fitness or suitability of the Premises or the Property for any particular use. 7.03 Maintenance and Repairs. Landlord will not be required to perform any maintenance or repairs, or management services, in the Premises, except as otherwise provided in this Lease. Tenant will be fully responsible, at Tenant's expense, for all maintenance and repairs, and management services, other than those that are expressly set forth in this Lease as Landlord's responsibility. COMMERCIAL LEASE AGREEMENT - Page 13 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by ziplogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Looix.com City of Denton Exhibit 7 - Incentive Agreement A. Landlord's Obligations. (1) Subject to the provisions of Article Eight (Damage or Destruction) and Article Nine (Condemnation) and except for damage caused by any act or omission of Tenant, Landlord shall keep the roof, skylights, foundation, structural components and the structural portions of exterior walls of the Premises in good order, condition and repair. Landlord will not be obligated to maintain or repair windows, doors, overhead doors, plate glass or the surfaces of walls. In addition, Landlord will not be obligated to make any repairs under this Section until a reasonable time after receipt of written notice from Tenant of the need for repairs. If any repairs are required to be made by Landlord, Tenant shall, at Tenant's sole cost and expense, promptly remove Tenant's furnishings, fixtures, inventory, equipment and other property, to the extent required to enable Landlord to make repairs. Landlord's liability under this Section will be limited to the cost of those repairs or corrections. Tenant waives the benefit of any present or future law that might give Tenant the right to repair the Premises at Landlord's expense or to terminate this Lease because of the condition. (2) All repairs, maintenance, management and other services to be performed by Landlord or Landlord's agents involve the exercise of professional judgment by service providers, and Tenant expressly waives any claims against Landlord for breach of warranty arising from the performance of those services. B. Tenant's Obligations. Subject to the provisions of Section 7.01, Section 7.03A, Article Eight (Damage or Destruction) and Article Nine (Condemnation), Tenant shall, at all times, keep all other portions of the Premises in good order, condition and repair (except for normal wear and tear), including, but not limited to, maintenance, repairs and all necessary replacements of the windows, plate glass, doors, overhead doors, HVAC equipment, electrical and lighting systems, fire protection sprinkler system, dock levelers, elevators, interior and exterior plumbing, the interior and exterior of the Premises in general, pest control and extermination, down spouts, gutters, paving, railroad siding, care of landscaping and regular mowing of grass. In addition, Tenant shall, at Tenant's expense, repair any damage to any portion of the Property, including the roof, skylights, foundation, or structural components and exterior walls of the Premises, caused by Tenant's acts or omissions. If Tenant fails to maintain and repair the Property as required by this Section, Landlord may, on 10 days' prior written notice, enter the Premises and perform the maintenance or repair on behalf of Tenant, except that no notice is required in case of emergency, and Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing the maintenance or repair, plus a reasonable service charge. C. HVAC Service. This Section pertains to the heating, ventilation and air- conditioning ( "HVAC ") systems and equipment that service the Premises. [Check one box only.] ❑ (1) Landlord is obligated to provide the HVAC services to the Premises only during the operating hours of the Property (as described below). ❑ (2) Landlord will provide the HVAC services to the Premises during the operating hours of the Property (as described below) for no additional charge and will, at Tenant's request, provide HVAC services to the Premises during other hours for an additional charge of $ per hour. Tenant will pay Landlord the charges under this paragraph promptly after receipt of Landlord's invoice. Hourly charges are charged on a half -hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services in advance. ® (3) Tenant will pay for the HVAC services under this Lease. For any HVAC system that services only the Premises, Tenant shall, at Tenant's own cost and expense, enter into a regularly scheduled preventative maintenance and service contract for all such HVAC systems and equipment during the Term. If Tenant fails to enter into such a service contract acceptable to Landlord, Landlord may do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and expense thereof, plus a reasonable service charge, periodically upon demand. COMMERCIAL LEASE AGREEMENT - Page 14 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement D. Operating Hours of the Property. The operating hours of the Property are the times reasonably determined by Landlord unless they are specified here. [specify the operating hours of the Property including the days of the week, and whether Saturdays, Sundays and holidays are included]: 24 hours per day, 7 days per week are permitted. E. Cleaning. Tenant must keep the Premises clean and sanitary and promptly dispose of all trash in appropriate receptacles. Tenant will provide, at Tenant's expense, janitorial services to the Premises, unless this box ❑ is checked, in which case Landlord will provide janitorial services to the Premises that are customary for the property type. Tenant will maintain, at Tenant's expense, any grease trap on the Property that Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law. 7.04 Alterations, Additions and Improvements. Tenant may not create any openings in the roof or exterior walls without the prior written consent of Landlord. Tenant may not make any alterations, additions or improvements to the Premises ( "Alterations ") without the prior written consent of Landlord. However, Tenant is not required to obtain the Landlord's prior written consent for non - structural Alterations that do not cost more than $5,000 and that do not modify or affect the roof, plumbing, HVAC systems or electrical systems. Consent for non - structural Alterations in excess of $5,000 or that modify or affect plumbing, HVAC systems or electrical systems will not be unreasonably withheld, conditioned or delayed by Landlord. Tenant may erect or install trade fixtures, shelves, bins, machinery, HVAC systems, and refrigeration equipment, provided that Tenant complies with all applicable governmental laws, ordinances, codes, and regulations. At the expiration or termination of this Lease, Tenant may, subject to the restrictions of Section 7.05, remove items installed by Tenant, provided Tenant is not in default at the time of the removal and Tenant repairs, in a good and workmanlike manner, any damage caused by the installation or removal. Tenant shall pay for all costs incurred or arising out of Alterations and will not permit any mechanic's or materialman's lien to be filed against the Premises or the Property. Upon request by Landlord, Tenant shall deliver to Landlord proof of payment, reasonably satisfactory to Landlord, of all costs incurred in connection with any Alterations. 7.05 Condition upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Premises to Landlord broom clean and in the same condition as received, except for normal wear and tear and any damage caused by a casualty that Tenant is not otherwise obligated to repair under any provision of this Lease. Tenant will not be obligated to repair any damage that Landlord is required to repair under Article Seven (Property Condition) or Article Eight (Damage or Destruction). In addition, Landlord may require Tenant to remove any Alterations before the expiration or termination of this Lease and to restore the Premises to their prior condition, all at Tenant's expense. However, Tenant will not be required to remove any Alterations that were made with Landlord's consent or that were otherwise permitted under the terms of this Lease. All Alterations that Tenant does not remove will become Landlord's property upon the expiration or termination of this Lease. In no event may Tenant remove any of the following items without Landlord's prior written consent: (i) electrical wiring or power panels; (ii) lighting or lighting fixtures; (iii) wall coverings, drapes, blinds or other window coverings; (iv) carpets or other floor coverings; (v) HVAC equipment; (vi) plumbing equipment; (vii) fencing or gates; or (viii) any fixtures, equipment or other items that, if removed, would affect the operation or the appearance of the Property. However, Tenant may remove Tenant's trade fixtures, equipment used in Tenant's business, and personal property. The provisions of this Section will survive the expiration or termination of this Lease. COMMERCIAL LEASE AGREEMENT - Page 15 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziDLooix.com City of Denton Exhibit 7 - Incentive Agreement ARTICLE EIGHT DAMAGE OR DESTRUCTION 8.01 Notice. If any buildings or other improvements situated on the Property are damaged or destroyed by fire, flood, windstorm, tornado or other casualty, Tenant shall immediately give written notice of the damage or destruction to Landlord. 8.02 Partial Damage. If the Premises are damaged by fire, tornado or other casualty, and rebuilding and repairs can be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, then this Lease will not terminate, but Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) to substantially the condition they were in before the damage. To the extent the Premises cannot be occupied (in whole or in part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably. If the casualty occurs during the last 18 months of the Term, Landlord will not be required to rebuild or repair the damage unless Tenant exercises Tenant's renewal option (if any) within 15 days after the date Landlord receives written notification of the occurrence of the damage. If the casualty occurs during the last 18 months of the Term and Tenant does not so exercise Tenant's renewal option, or if there is no renewal option in this Lease, Landlord may, at Landlord's option, terminate this Lease by delivering a written termination notice to Tenant, in which case the Rent will be abated for the unexpired portion of the Term, effective on the date Landlord received written notification of the damage. 8.03 Substantial or Total Destruction. If the Premises are substantially or totally destroyed by fire, tornado, or other casualty, or so damaged that rebuilding and repairs cannot reasonably be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, either Landlord or Tenant may terminate this Lease by promptly delivering a written termination notice to the other party, in which event the monthly installments of Rent will be abated for the unexpired portion of the Term, effective on the date of the damage or destruction. If neither party promptly terminates this Lease, Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (except that Tenant shall rebuild and repair Tenant's fixtures and improvements in the Premises). To the extent the Premises cannot be occupied (in whole or in part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably. ARTICLE NINE CONDEMNATION If, during the Term, all or a substantial part of the Premises are taken for any public or quasi - public use under any governmental law, ordinance or regulation or by right of eminent domain, or are conveyed to the condemning authority under threat of condemnation, this Lease will terminate and the monthly installments of Rent will be abated during the unexpired portion of the Term, effective on the date of the taking. If less than a substantial part of the Premises is taken for public or quasi - public use under any governmental law, ordinance or regulation, or by right of eminent domain, or is conveyed to the condemning authority under threat of condemnation, Landlord shall promptly, at Landlord's expense, restore and reconstruct the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) in order to make the Premises reasonably suitable for the Permitted Use. The Rent payable under this Lease during the unexpired portion of the Term will be adjusted equitably. If there is a taking of the Property that has a material, adverse effect on the operation of Tenant's business in the Premises, then the Rent will be adjusted equitably. Landlord and Tenant will each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceeding. The termination of this Lease will not affect the rights of the parties to those awards. COMMERCIAL LEASE AGREEMENT - Page 16 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zit)Looix.com City of Denton Exhibit 7 - Incentive Agreement ARTICLE TEN ASSIGNMENT AND SUBLETTING Tenant may not assign this Lease or sublet the Premises or any portion thereof, without the prior written consent of Landlord, which consent will not be unreasonably withheld or delayed. Any assignment or subletting will be expressly subject to all terms and provisions of this Lease, including the provisions of Section 6.01 pertaining to the use of the Premises. In the event of any assignment or subletting, Tenant will remain fully liable for the full performance of all of Tenant's obligations under this Lease. Tenant may not assign Tenant's rights under this Lease or sublet the Premises without first obtaining a written agreement from the assignee or sublessee whereby the assignee or sublessee agrees to assume the obligations of Tenant under this Lease and to be bound by the terms of this Lease. If a Default occurs while the Premises is assigned or sublet, Landlord may, at Landlord's option, in addition to any other remedies provided in this Lease or by law, collect directly from the assignee or subtenant all rents becoming due under the terms of the assignment or subletting and apply the rents against any sums due to Landlord under this Lease. No direct collection by Landlord from any assignee or subtenant will release Tenant from Tenant's obligations under this Lease. ARTICLE ELEVEN DEFAULT AND REMEDIES 11.01 Default. Each of the following events is a default under this Lease (a "Default "): A. Failure of Tenant to pay any installment of the Rent or other sum payable to Landlord under this Lease on the date that it is due, and the continuance of that failure for a period of five days after Landlord delivers written notice of the failure to Tenant. This clause will not be construed to permit or allow a delay in paying Rent beyond the due date and will not affect Landlord's right to impose a Late Charge as permitted in Section 3.03; B. Failure of Tenant to comply with any term, condition or covenant of this Lease, other than the payment of Rent or other sum of money, and the continuance of that failure for a period of 30 days after Landlord delivers written notice of the failure to Tenant; C. Failure of Tenant or any guarantor of Tenant's obligations under this Lease to pay its debts as they become due or an admission in writing of inability to pay its debts, or the making of a general assignment for the benefit of creditors; D. The commencement by Tenant or any guarantor of Tenant's obligations under this Lease of any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; E. The commencement of any case, proceeding or other action against Tenant or any guarantor of Tenant's obligations under this Lease seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and Tenant or any guarantor: (i) fails to obtain a dismissal of such case, proceeding, or other action within 60 days of its commencement; or (ii) converts the case from one chapter of the Federal Bankruptcy Code to another chapter; or (iii) is the subject of an order of relief that is not fully stayed within seven business days after the entry thereof; and F. Vacancy or abandonment by Tenant of any substantial portion of the Premises or cessation of the use of the Premises for the purpose leased, and the continuance of that vacancy, COMMERCIAL LEASE AGREEMENT - Page 17 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziplooix.com City of Denton Exhibit 7 - Incentive Agreement abandonment or cessation for a period of 30 days after Landlord delivers a written notice to Tenant. 11.02 Remedies. Upon the occurrence of any Default listed in Section 11 -01-, Landlord may pursue any one or more of the following remedies without any prior notice or demand. A. Landlord may terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises, Landlord may, without prejudice to any other remedy that Landlord may have for possession of the Premises or Rent in arrears, enter upon and take possession of the Premises and expel Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for any claim for damages due to the termination of this Lease or termination of possession. Tenant shall pay to Landlord on demand the amount of all Rent and loss and damage Landlord may suffer by reason of the termination or inability to relet the Premises up to the date of termination, in addition to any other liabilities that survive the termination of this Lease. B. Landlord may enter upon and take possession of the Premises, without terminating this Lease and without being liable for any claim for damages due to termination of possession, and expel Tenant and any other person who may be occupying the Premises or any part thereof. Landlord may relet the Premises and receive rent from the new occupant. Tenant agrees to pay to Landlord monthly, or on demand from time to time, any deficiency that may arise by reason of any such reletting. In determining the amount of the deficiency, professional service fees, reasonable attorneys' fees, court costs, remodeling expenses and other costs of reletting will be subtracted from the amount of rent received from the new occupant. C. Landlord may enter upon the Premises, without terminating this Lease and without being liable for any claim for damages due to such entry, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses that Landlord incurs in performing Tenant's obligations under this Lease, together with interest thereon at the rate of 12% per annum from the date spent until paid. D. Landlord may sue Tenant for damages for breach of this Lease after Tenant's Default and abandonment of the Premises, or after Landlord terminates Tenant's possession and Tenant vacates the Premises, in which case the measure of damages is the sum of: (i) the unpaid Rent up to the date of the abandonment or vacancy, plus (ii) the difference between the Rent for the remainder of the Term after abandonment or vacancy, and the fair market rental value of this Lease for the remainder of the Term after abandonment or vacancy, such difference to be discounted to present value at a rate equal to the rate of interest that is allowed by law in the State of Texas when the parties to a contract have not agreed on any particular rate of interest (or, in the absence of such law, at the rate of 6% per annum). Neither the enforcement or collection by Landlord of those amounts nor the payment by Tenant of those amounts will constitute a waiver by Landlord of any breach, existing or in the future, of any of the terms or provisions of this Lease by Tenant or a waiver of any rights or remedies that the Landlord may have with respect to any breach. E. In addition to the foregoing remedies, Landlord may change or modify the locks on the Premises if Tenant fails to pay the Rent when due. Landlord will not be obligated to provide another key to Tenant or allow Tenant to regain entry to the Premises unless and until Tenant pays Landlord all Rent that is delinquent. Tenant agrees that Landlord will not be liable for any damages resulting to the Tenant from the lockout. When Landlord changes or modifies the locks, Landlord or Landlord's agent shall post a written notice in accordance with Section 93.002 of the Texas Property Code, or its successor statute. Tenant may be subject to legal liability if Tenant or Tenant's representative tampers with any lock after the locks have been changed or modified. F. No re -entry or taking possession of the Premises by Landlord will be construed as an election to terminate this Lease, unless a written notice of that intention is given to Tenant. Notwithstanding any re- entry, taking possession or reletting, Landlord may, at any time COMMERCIAL LEASE AGREEMENT - Page 18 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 7 - Incentive Agreement thereafter, elect to terminate this Lease for a previous Default. Pursuit of any of the foregoing remedies will not preclude pursuit of any other remedies provided by law, nor will pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any Rent due to Landlord under this Lease or of any damages accruing to Landlord by reason of the violation of any of the provisions in this Lease. Failure of Landlord to declare any Default immediately upon its occurrence, or failure to enforce one or more of Landlord's remedies, or forbearance by Landlord to enforce one or more of Landlord's remedies upon a Default, will not be deemed to constitute a waiver of any of Landlord's remedies for any Default. Pursuit of any one of the remedies will not preclude pursuit by Landlord of any of the other remedies provided in this Lease. The loss or damage that Landlord may suffer by reason of a Default by Tenant under this Lease, or the deficiency from any reletting, will include the expense of taking possession and any repairs performed by Landlord after a Default by Tenant. If Landlord terminates this Lease at any time for any Default, in addition to other Landlord's remedies, Landlord may recover from Tenant all damages Landlord may incur by reason of the Default, including the cost of recovering the Premises and the Rent then remaining unpaid. G. Nothing in this Lease will be construed as imposing any duty upon Landlord to relet the Premises. Landlord will have no duty to mitigate Landlord's damages except as required by applicable law. Any duty imposed by law on Landlord to mitigate damages after a Default by Tenant will be satisfied if Landlord undertakes to lease the Premises to another tenant (a "Substitute Tenant ") in accordance with the following criteria: (1) Landlord will have no obligation to solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant; (2) Landlord will not be obligated to lease or show the Premises on a priority basis, or offer the Premises to a prospective tenant when other space in the Property suitable for the prospective tenant's use is (or soon will be) available; (3) Landlord will not be obligated to lease the Premises to a Substitute Tenant for an amount less than the current fair market rent then prevailing for similar uses in comparable buildings in the same market area as the Property, nor will Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlord's then current leasing policies for comparable space in the Property; (4) Landlord will not be obligated to enter into a lease with a Substitute Tenant whose use would: (i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the Property; (ii) adversely affect the reputation of the Property; or (iii) be incompatible with other uses of the Property. (5) Landlord will not be obligated to enter into a lease with a Substitute Tenant that does not have, in Landlord's reasonable opinion, sufficient financial resources to pay the Rent under the new lease and operate the Premises in a first class manner; and (6) Landlord will not be required to spend any amount of money to alter, remodel, or otherwise make the Premises suitable for use by a proposed Substitute Tenant unless: (i) Tenant pays any such sum to Landlord in advance of Landlord's execution of a lease with the Substitute Tenant (which payment will not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant's Default under this Lease); or COMMERCIAL LEASE AGREEMENT - Page 19 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement (ii) Landlord, in Landlord's reasonable discretion, determines that any such expenditure is financially justified in connection with entering into a lease with the Substitute Tenant. H. No right or remedy of Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy will be cumulative and in addition to any other right or remedy now or hereafter existing under this Lease, at law, in equity or by statute. Landlord will not be liable for any damages resulting to Tenant from any right or remedy exercised by Landlord, regardless of the cause, even if it is caused by the sole, joint or concurrent negligence of Landlord. 11.03 Notice of Default. Tenant shall give written notice of any failure by Landlord to perform any of Landlord's obligations under this Lease to Landlord and to any ground lessor, mortgagee or beneficiary under any deed of trust encumbering the Premises whose name and address have been furnished to Tenant in writing. Landlord will not be in default under this Lease unless Landlord (or the ground lessor, mortgagee or beneficiary) fails to cure the nonperformance within 30 days after receipt of Tenant's notice. However, if the nonperformance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30 -day period and is thereafter diligently pursued to completion. 11.04 Limitation of Landlord's Liability. As used in this Lease, the term "Landlord" means only the current owner or owners of the fee title to the Premises, or the leasehold estate under a ground lease of the Premises, at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such title or estate. Any Landlord who transfers its title, estate or other interest is relieved of all liability with respect to the obligations of Landlord under this Lease accruing on or after the date of the transfer, and Tenant agrees to recognize the transferee as Landlord under this Lease. However, each Landlord shall deliver to its transferee the Security Deposit held by Landlord, to the extent the Security Deposit has not then been applied under the terms of this Lease. ARTICLE TWELVE LANDLORD'S CONTRACTUAL LIEN In addition to the statutory Landlord's lien, Tenant hereby grants to Landlord a security interest to secure payment of all Rent and other sums of money becoming due under this Lease from Tenant, upon all inventory, goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated in or on the Premises, together with the proceeds from the sale thereof. Tenant may not remove such property without the consent of Landlord until all Rent in arrears and other sums then due to Landlord under this Lease have been paid. Upon the occurrence of a Default, Landlord may, in addition to any other remedies provided in this Lease or by law, enter upon the Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated in or on the Premises without liability for trespass or conversion, and sell the property at public or private sales, with or without having the property at the sale, after giving Tenant reasonable notice of the time and place of any such sale. Unless otherwise required by law, notice to Tenant of the sale will be deemed sufficient if given in the manner prescribed in this Lease at least 10 days before the time of the sale. Any public sale made under this Article will be deemed to have been conducted in a commercially reasonable manner if held on the Premises or where the property is located, after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county where the Premises is located for five consecutive days before the date of the sale. Landlord or its assigns may purchase at a public sale and, unless prohibited by law, at a private sale. The proceeds from any disposition pursuant to this Article, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys' fees and expenses), will be applied as a credit against the indebtedness secured by the security interest granted in this Article. Any surplus will be paid to Tenant or as otherwise required by law, and Tenant shall promptly pay any deficiencies. Landlord is authorized to file a financing statement to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Texas Business and Commerce Code in effect in the State of Texas. Provided Tenant is not in default under any of the COMMERCIAL LEASE AGREEMENT - Page 20 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLogix.com City of Denton Exhibit 7 - Incentive Agreement terms of this Lease, upon written request by Tenant, Landlord shall deliver a written subordination of Landlord's statutory and contractual liens to any liens and security interests securing any institutional third party financing of Tenant. Landlord shall not unreasonably withhold or delay the delivery of Landlord's written subordination. ARTICLE THIRTEEN PROTECTION OF LENDERS 13.01 Subordination and Attornment. Landlord may subordinate this Lease to any future ground Lease, deed of trust or mortgage encumbering the Premises, and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord's right to subordinate is subject to Landlord providing Tenant with a written Subordination, Non - disturbance and Attornment Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession of the Premises during the Term will not be disturbed if Tenant pays the Rent and performs all of Tenant's obligations under this Lease and is not otherwise in default, in which case Tenant shall attorn to the transferee of or successor to Landlord's interest in the Premises and recognize the transferee or successor as Landlord under this Lease. Tenant's rights under this Lease are subordinate to any existing ground lease, deed of trust or mortgage encumbering the Premises. However, if any ground lessor, beneficiary or mortgagee elects to have this Lease be superior to its ground lease, deed of trust or mortgage and gives Tenant written notice thereof, then this Lease will be deemed superior to the ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof. 13.02 Signing of Documents. Tenant shall sign and deliver any document that may be requested to evidence any attornment or subordination, or any agreement to attorn or subordinate, as long as the document is consistent with the provisions of Section 13.01. If Tenant fails to do so within 10 days after a written request, Tenant hereby irrevocably appoints Landlord as Tenant's attorney -in -fact to execute and deliver the attornment or subordination document. 13.03 Estoppel Certificates. A. Upon Landlord's written request, Tenant shall execute and deliver to Landlord a written statement (an "Estoppel Certificate ") certifying: (1) whether Tenant is an assignee or subtenant; (2) the Expiration Date of this Lease; (3) the number of renewal options under this Lease, if any, and the total period of time covered by the renewal options; (4) that none of the terms or provisions of this Lease have been changed since the original execution of this Lease, except as shown on any attached amendments or modifications; (5) that no default exists under the terms of this Lease by either Landlord or Tenant; (6) that Tenant has no claim against Landlord under this Lease and has no defense or right of offset against collection of Rent or other charges accruing under this Lease; (7) the amount and payment date of the last payment of Rent, the period of time covered by that payment, and the amount of any rental payments made in advance; (8) the amount of any Security Deposit and other deposits, if any; and (9) the identity and address of any guarantor of this Lease. Tenant shall deliver the statement to Landlord within 10 days after Landlord's request. Landlord may forward any such statement to any prospective purchaser or lender of the Premises. The purchaser or lender may rely conclusively upon the statement as true and correct. B. If Tenant does not deliver the Estoppel Certificate to Landlord within the 10 -day period, Landlord, and any prospective purchaser or lender, may conclusively presume and rely upon the following facts: (1) that the terms and provisions of this Lease have not been COMMERCIAL LEASE AGREEMENT - Page 21 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Loaix.com City of Denton Exhibit 7 - Incentive Agreement changed except as otherwise represented by Landlord; (2) that this Lease has not been terminated except as otherwise represented by Landlord; (3) that not more than one monthly installment of Base Rent and other charges have been paid in advance; (4) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent; and (5) that Landlord is not in default under this Lease, In such event, Tenant will be estopped from denying the truth of the presumed facts. C. Also, if Tenant does not deliver the Estoppel Certificate to Landlord within the 10 -day period, Landlord may deliver a written notice to Tenant stating that Tenant must deliver an Estoppel Certificate under this Section within five days after Tenant receives the notice. If Tenant does not deliver an Estoppel Certificate to Landlord within five days after Tenant receives the notice, then Tenant's failure to deliver an Estoppel Certificate will constitute a Default under this Lease, notwithstanding any longer period of time under Section 11.01 that Tenant would otherwise be allowed to cure a failure before the failure would become a Default. 13:84 Tenant's ARTICLE FOURTEEN ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY 14.01 Tenant's Compliance with Environmental Laws. Tenant, at Tenant's expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of Federal, State, county and municipal authorities pertaining to Tenant's use of the Property and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials (as defined in Section 14.05), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Landlord or Tenant with respect to the use or occupancy of the Property. 14.02 Tenant's Indemnification. Tenant shall not cause or permit any Hazardous Materials to be % brought upon, kept or used in or about the Property by Tenant, or Tenant's ages employees, without the prior written consent of Landlord. if the presence of Hazardous Materials on the Property caused or permitted by Tenant results in contamination of the Property of , then bin, Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, " J d damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value � � of 114,t of the Property, damages for the loss or restriction on use of rentable or unusable space or of any amenity or appurtenance of the Property, damages arising from any adverse impact on marketing of �VN of building space or land area, sums paid in settlement of claims, reasonable attorneys' fees, court costs, 0 consultant fees and expert fees) that arise during or after the Term as a result of the contamination. ! ° This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean -up, remedial work, removal or restoration work ���� required by any Federal, State or local government agency because of Hazardous Materials present in the soil or ground water on or under the Property. Without limiting the foregoing, if the presence of any Hazardous Mat rials by Tenant results in ny contammation of the Property, Tenant shall promptly take all actions at Tenant's sole expense as are necessary to return the Property to the condition existing prior to the introduction of any such Hazardous Materials, provided that Landlord's approval of such actions is first obtained. COMMERCIAL LEASE AGREEMENT - Page 22 OO NTCAR 2014 - Form No. 2 (312014) Produced vAth zlpForm®by zipLogtx 18070 rtteon Wo Road, Fraser, Michigan 40026 v zfoLOglx.com City of Denton Exhibit 7 - Incentive Agreement 14.03 Landlord's Representations. Landlord represents, to the best of Landlord's actual knowledge, that: (i) any handling, transportation, storage, treatment or usage of Hazardous Materials that has occurred on the Property to date has been in compliance with all applicable Federal, State, and local laws, regulations and ordinances; and (ii) no leak, spill, release, discharge, emission or disposal of Hazardous Materials has occurred on the Property to date and that the soil or groundwater on or under the Property is free of Hazardous Materials as of the Commencement Date, unless expressly disclosed by Landlord to Tenant in writing. 14.04 Landlord's Indemnification. Landlord hereby indemnifies, defends and holds Tenant harmless from any claims, judgments, damages, penalties, fines, costs, liabilities, (including sums paid in settlements of claims) or loss, including, without limitation, reasonable attorneys' fees, court costs, consultant fees, and expert fees, which arise during or after the Term of this Lease from or in connection with the presence or suspected presence of Hazardous Materials in the soil or groundwater on or under the Property, unless the Hazardous Material is released by Tenant or is present as a result of the negligence or willful conduct of Tenant. Without limiting the generality of the foregoing, the indemnification provided by this Section will specifically cover costs incurred in connection with any investigation of site conditions or any clean -up, remedial work, removal or restoration work required by any Federal, State or local governmental authority. 14.05 Definition. For purposes of this Lease, the term "Hazardous Materials" means any one or more pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent or oil as defined in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Clean Water Act, as amended, the Water Pollution Control Act, as amended, the Solid Waste Disposal Act, as amended, or any other Federal, State or local environmental law, regulation, ordinance, or rule, whether existing as of the date of this Lease or subsequently enacted. 14.06 Survival. The representations and indemnities contained in this Article Fourteen will survive the expiration or termination of this Lease. ARTICLE FIFTEEN PROFESSIONAL SERVICE FEES 15.01 Amount and Manner of Payment. Professional service Fees due to the Principal Broker and Cooperating Broker (together, the "Brokers ") will be calculated and paid as follows: A. Lump Sum. Unless the box for Section 15.0.1..B is checked in Section 1.14A, then Landlord agrees to pay to each of the Brokers a lump sum professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to: (i) the percentages stated in Section 1.14A of the total Base Rent to become due to Landlord during the Term, if the blanks for percentages are completed; or (ii) the amounts per square foot in the Premises stated in Section 1.14A, if the blanks for amounts per square foot are completed. The Fees will be paid to the Brokers (i) one -half on the date of final execution of this Lease, and (ii) the balance on the Commencement Date of this Lease. B. Monthly. If the box for this Section 15.01B is checked in Section 1.14A, then Landlord agrees to pay to each of the Brokers a monthly professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to the percentages stated in Section 1.14A of each monthly Base Rent payment at the time the payment is due. 15.02 Payments on Renewal, Expansion or New Lease. Subject to the termination date stated in this Section below, if Tenant or Tenant's successors or assigns: (a) exercises any right or option to renew or extend the Term (whether contained in this Lease or in any amendment to this Lease) or enters into a new lease covering the Premises, a portion of the Premises, or the Premises and additional space; or (b) enters into any new lease, expansion or other rental agreement as to any premises located on or constituting all or part of any real property owned by Landlord adjacent to the Property, then Landlord shall pay to each of the Brokers an additional Fee covering the full period of COMMERCIAL LEASE AGREEMENT - Page 23 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziolooix.com City of Denton Exhibit 7 - Incentive Agreement the renewal, extension, new lease, expansion or other rental agreement. The additional Fees will be due on the date of exercise of a renewal option, or the date of execution in the case of a new lease, expansion or other agreement. The additional Fees will be computed and paid under Section 15.01 A or Section 15.01 B above (whichever has been made applicable under Section 1.14), as if a new lease had been made for such period of time. The Brokers' right to receive these additional Fees will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended. 15.03 Payments on Sale. Subject to the termination date stated in this Section below, if Tenant or Tenant's successors or assigns, purchases the Premises pursuant to a purchase option contained in this Lease (or in any amendment to this Lease or any other agreement) or otherwise purchases the Premises, the Property or any portion of either the Premises or the Property, then Landlord shall pay to each of the Brokers a Fee equal to the percentages stated in Section 1.148 of the purchase price, payable in Good Funds at the closing. Upon the closing of a sale to Tenant, any monthly lease Fees will terminate upon payment of the Fee on the sale. The Brokers' right to receive the Fees set forth in this Section 15.03 will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended. 15.04 Other Brokers. Both Landlord and Tenant represent to the other party that they have had no dealings with any person, firm or agent in the negotiation of this Lease other than the Broker(s) named in this Lease, and no other broker, agent, person, firm or entity other than the Broker(s) is entitled to any commission or fee in connection with this Lease. 15.05 Landlord's Liability. Landlord will be liable for payment of all Fees solely to the Brokers, and Landlord will not be obligated to pay any claims by any undisclosed broker. The Principal Broker may pay a portion of the Fee to any Cooperating Broker pursuant to a separate agreement between the Brokers. 15.06 Joint Liability of Tenant. If Tenant enters into any new lease, extension, renewal, expansion, or other agreement to rent, occupy, or purchase any property described in Section 15.02 or Section 15.03 within the time specified in those Sections, the negotiations must be communicated through the Principal Broker (which may be done through the Cooperating Broker), otherwise Tenant will be jointly and severally liable with Landlord for any payments due or to become due to the Principal Broker. 15.07 Assumption on Sale. In the event of a sale or other transfer of the Premises by Landlord, Landlord shall assign this Lease to the purchaser or other transferee, and obtain from the purchaser or other transferee an Assumption Agreement in recordable form whereby the purchaser or other transferee agrees to pay the Brokers all Fees payable under this Lease. Landlord shall deliver a fully executed original counterpart of the Assumption Agreement to each of the Brokers upon the closing of the sale or other transfer of the Premises. Landlord will be released from personal liability for subsequent payments of Fees payable under this Lease only upon the delivery of the Assumption Agreement to the Brokers. 15.08 Termination. Landlord and Tenant agree that the Brokers are third party beneficiaries of this Lease with respect to the Fees, and that no change may be made by Landlord or Tenant as to the time of payment, amount of payment or the conditions for payment of the Fees without the written consent of the Brokers. The termination of this Lease by the mutual agreement of Landlord and Tenant will not affect the right of the Brokers to continue to receive the Fees agreed to be paid under this Lease, just as if Tenant had continued to occupy the Premises and had paid the Rent during the entire Term. Amendment or termination of this Lease under Article Eight (Damage or Destruction) and Article Nine (Condemnation) will not amend or terminate the Brokers' right to collect the Fees. 15.09 Intermediary Relationship. A. If either of the Brokers has indicated in Section 1.12 or Section 1.13 or otherwise that they are acting as an intermediary, then Landlord and Tenant consent to the intermediary relationship, authorize such Broker or Brokers to act as an intermediary between Landlord and Tenant in connection with this Lease, and acknowledge that the source of any expected compensation to the Brokers will be Landlord, and the Brokers may also be paid a fee by Tenant. A broker, and any broker or salesperson appointed to communicate COMMERCIAL LEASE AGREEMENT - Page 24 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziDLooix.com City of Denton Exhibit 7 - Incentive Agreement with and carry out instructions of one party, who acts as an intermediary is required to act fairly and impartially, and may not: (1) disclose to Tenant that Landlord will accept a rent less than the asking rent, unless otherwise instructed in a separate writing by Landlord; (2) disclose to Landlord that Tenant will pay a rent greater than the rental submitted in a written offer to Landlord, unless otherwise instructed in a separate writing by Tenant; (3) disclose any confidential information, or any information a party specifically instructs the real estate broker or salesperson in writing not to disclose, unless: (a) the broker or salesperson is otherwise instructed in a separate writing by the respective party; (b) the broker or salesperson is required to disclose the information by the Texas Real Estate License Act or a court order; or (c) the information materially relates to the condition of the property; (4) treat a party to the transaction dishonestly; or (5) violate the Texas Real Estate License Act. B. Appointments. Each Broker is authorized to appoint, by providing written notice to the parties, one or more license holders associated with the Broker to communicate with and carry out instructions of one party, and one or more other license holders associated with the Broker to communicate with and carry out instructions of the other party. An appointed license holder may provide opinions and advice during negotiations to the party to whom the license holder is appointed. ARTICLE SIXTEEN MISCELLANEOUS AND ADDITIONAL PROVISIONS 16.01 Disclosure. Landlord and Tenant understand that a real estate broker is not an expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture, the TABA, or the ADA. The Brokers hereby advise Tenant to seek expert assistance on such matters. Brokers do not investigate a property's compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of a property and its construction, or that relate to its acquisition. If the Brokers provide names of consultants or sources for advice or assistance, Tenant acknowledges that the Brokers do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired or leased. Furthermore, the Brokers do not warrant that the Landlord will disclose any or all property defects, although the Brokers will disclose to Tenant any actual knowledge possessed by Brokers regarding defects of the Premises and the Property. In this regard, Tenant agrees to make all necessary and appropriate inquiries and to use diligence in investigating the Premises and the Property before signing this Lease. Tenant acknowledges and agrees that neither the Principal Broker nor any Cooperating Broker has made any representation to Tenant with respect to the condition of the Premises, and that Tenant is relying exclusively upon Tenant's own investigations and the representations of Landlord, if any, with respect to the condition of the Premises. Landlord and Tenant agree to hold the Brokers harmless from any and all damages, claims, costs and expenses resulting from or related to Landlord's furnishing to the Brokers any inaccurate information with respect to the Premises, or Landlord's concealing any material information with respect to the Premises. Landlord and Tenant hereby agree to indemnify and defend the Brokers against any and all liabilities, claims, debts, damages, costs, or expenses, including but not limited to reasonable attorneys' fees and court costs, related to or arising out of or in any way connected to (a) representations concerning matters properly the subject of advice by experts; or (b) any dispute directly between Landlord and Tenant regarding this Lease. In addition, to the extent permitted by applicable law, the Brokers' COMMERCIAL LEASE AGREEMENT - Page 25 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement liability for errors, omissions, or negligence is limited to the return of the Fee, if any, paid to the Brokers pursuant to this Lease. 16.02 Force Majeure. If performance by Landlord of any term, condition or covenant in this Lease is delayed or prevented by any Act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot, flood, or any other cause not within the control of Landlord, the period for performance of the term, condition or covenant will be extended for a period equal to the period Landlord is so delayed or prevented. 16.03 Interpretation. The captions of the Articles or Sections of this Lease are to assist the parties in reading this Lease and are not part of the terms or provisions of this Lease. Whenever required by the context of this Lease, the singular will include the plural and the plural will include the singular, and the masculine, feminine and neuter genders will each include the other. 16.04 Waivers. Any waivers of any provisions of this Lease must be in writing and signed by the waiving party. Landlord's delay or failure to enforce any provisions of this Lease or Landlord's acceptance of late installments of Rent will not be a waiver and will not prevent Landlord from enforcing that provision or any other provision of this Lease in the future. No statement on a check from Tenant or in a letter accompanying a check will be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or endorse the check without being bound to the conditions of any such statement. 16.05 Severability. A determination by a court of competent jurisdiction that any provision of this Lease is invalid or unenforceable will not invalidate the remainder of that provision or any other provision of this Lease, which will remain in full force and effect. 16.06 Joint and Several Liability. All parties signing this Lease as Tenant will be jointly and severally liable for all obligations of Tenant. Tenant will be responsible for the conduct, acts and omissions of Tenant's agents, employees, customers, contractors, invitees, agents, successors or others using the Premises with Tenant's express or implied permission. 16.07 Amendments or Modifications. This Lease is the only agreement between the parties pertaining to the lease of the Premises and no other agreements are effective unless made a part of this Lease. All amendments to this Lease must be in writing and signed by all parties. 16.08 Notices. All notices and other communications required or permitted under this Lease must be in writing and will be deemed delivered, whether actually received or not, on the earlier of: (i) actual receipt if delivered in person or by messenger with evidence of delivery; or (ii) receipt of an electronic facsimile transmission ( "Fax ") with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified in Article One of this Lease, if any. Notices delivered by mail must be deposited in the U.S. Postal Service, certified mail, return receipt requested, postage prepaid, and properly addressed to the intended recipient as set forth in Article One. Notices sent by any other means will be deemed delivered when actually received, with proof of delivery. After possession of the Premises by Tenant, Tenant's address for notice purposes will be the address of the Premises unless Tenant notifies Landlord in writing of a different address to be used for that purpose. Any party may change its address for notice by delivering written notice of its new address to all other parties in the manner set forth above. Copies of all notices should also be delivered to the Brokers, but failure to notify the Brokers will not cause an otherwise properly delivered notice to be ineffective. Also, copies of all notices must also be delivered to the following persons [if the blanks have been completed]: Copies of notices to Landlord are to be delivered to: Rail Yard Partners LTD Address: 525 S. Loop 288, Suite 105 Denton TX 76205 Telephone: Email: Fax: COMMERCIAL LEASE AGREEMENT - Page 26 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLooix.com City of Denton Exhibit 7 - Incentive Agreement Copies of notices to Tenant are to be delivered to: City of Denton Address: 215 E. McKinney Street Denton TX 76201 Telephone: (940) 349 -8200 Fax: Email: ❑ Landlord also consents to receive any notices by e -mail. [Check the box, if applicable.] ❑ Tenant also consents to receive any notices by e -mail. [Check the box, if applicable.] 16.09 Attorneys' Fees. If, on account of any breach or default by any party to this Lease in its obligations to any other party to this Lease (including, but not limited to, the Brokers), it becomes necessary for a party to employ an attorney to enforce or defend any of its rights or remedies under this Lease, the non - prevailing party agrees to pay the prevailing party its reasonable attorneys' fees and court costs, if any, whether or not suit is instituted in connection with the enforcement or defense. 16.10 Venue. All obligations under this Lease, including, but not limited to, the payment of Fees to the Brokers, will be performed and payable in the county in which the Property is located. The laws of the State of Texas will govern this Lease. 16.11 Survival. All obligations of any party to this Lease that are not fulfilled at the expiration or the termination of this Lease will survive such expiration or termination as continuing obligations of the party. 16.12 Binding Effect. This Lease will inure to the benefit of, and be binding upon, each of the parties to this Lease and their respective heirs, representatives, successors and assigns. However, Landlord will not have any obligation to Tenant's successors or assigns unless the rights or interests of the successors or assigns are acquired in accordance with the terms of this Lease. 16.13 Right to Claim a Lien. If a commission agreement or other agreement to pay Fees to the Brokers is not included in this Lease, then be advised that pursuant to Chapter 62 of the Texas Property Code, each Broker hereby discloses the Broker's right to claim a lien based on a separate written commission agreement or other agreement to pay Fees to the Broker, and this disclosure is incorporated in the commission agreement or other agreement to pay Fees. 16.14 Patriot Act Representation. Landlord and Tenant each represent to the other that: (1) its property interests are not blocked by Executive Order No. 13224, 66 Fed. Reg. 49079; (2) it is not a person listed on the Specially Designated Nationals and Blocked Persons list of the Office of Foreign Assets Control of the United States Department of the Treasury; and (3) it is not acting for or on behalf of any person on that list. 16.15 Counterparts. This Lease may be executed in a number of identical counterparts, and all counterparts will be construed together as one agreement. 16.16 Offer. The execution of this Lease by the first party to do so constitutes an offer to lease the Premises. Unless this Lease is signed by the other party and a fully executed copy is delivered to the first party by the earlier of this date or the date that is 10 days after the date of execution by the first party, such offer to lease will be deemed automatically withdrawn. Any acceptance of an offer that has been withdrawn will only be effective if the party that withdrew the offer subsequently agrees to the acceptance either in writing or by course of conduct. COMMERCIAL LEASE AGREEMENT - Page 27 ©NTCAR 2014 - Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com City of Denton Exhibit 7 - Incentive Agreement 16.17 Additional Provisions. Landlord and Tenant agree to any provisions set forth on the attached Addenda (if any) and the following additional provisions (if any): 1. In addition to the rent stated in Section 1.06, the City of Denton has entered into an Economic Development Program Grant Agreement under which the City will grant $76,000 per year for the term of this lease, subject to compliance with the Terms and Conditions of the Grant Agreement (Exhibit D) . 2. Landlord acknowledges that the programming use for the premises will involve a 3rd party organization that will manage the facility and sublease the space to other office tenants in a co- working environment. This use or agreement with a managing entity will not be considered a sublease that will require Landlord approval as stated in Article 10. COMMERCIAL LEASE AGREEMENT - Page 28 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLooix.com City of Denton Exhibit 7 - Incentive Agreement 16.18 Consult an Attorney. This Lease is an enforceable, legally binding agreement. Read it carefully. The Brokers involved in the negotiation of this Lease cannot give you legal advice. Landlord and Tenant acknowledge that they have been advised by the Brokers to have this Lease reviewed by competent legal counsel of their choice before signing this Lease. By executing this Lease, Landlord and Tenant each agree to the provisions contained in this Lease. This Lease has been executed as of the Effective Date (as defined in Section 1.01). LANDLORD: LANDLORD: Rail Yard Partners LTD By [Signature]: Name: Title: Date of Execution: TENANT: City of Denton By [Signature]: Name:George C. Campbell Title: City Manager Date of Execution: PRINCIPAL BROKER: Axis Realty Group By [Signature]: Name:Alex Payne Title: Address: Broker's License No.: Tax ID No.: By [Signature]: _ Name: Title: Date of Execution: TENANT: Approved as to form: By [Signature]: Name:Anita Burgess Title: City Attorney Date of Execution: COOPERATING BROKER: By [Signature]: Name: Title: Address: Broker's License No.: Tax ID No.: PERMISSION TO USE: This form is provided for- the use of members of the North Texas Commercial Association of REALTORS @, Inc. ( "NTCAR "), members of the North Texas Commercial Association of Real Estate Professionals, Inc. and other licensed users of an NTCAR electronic forms system. Permission is given to make limited copies of the current version of this form for use in a particular Texas real estate t•dnsaction. Please contact the NTCAR office to confirm that you are using the euwent version of this form. Mass production, or reproduction for resale, is not allowed without express permission. Any changes to this form must be made in a manner that is obvious. If any words are deleted, they must be left in the form with a line drawn through them. If changes are made that are not obvious, the person who made the change could be subject to a claim of fizaud or misrepresentation for passing off an altered form as if it were the genuine NTCAR form. COMMERCIAL LEASE AGREEMENT - Page 29 ONTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zir)Loaix.com City of Denton Exhibit 7 - Incentive Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "A" TO LEASE RENEWAL OPTIONS Address of the Premises: 608 E Hickory St, Ste 128, Denton, TX 76201 1. Option to Extend the Term. Landlord grants to Tenant 2 option(s) (each an "Option ") to extend the Term for an additional term of 60 months each (the "Extension "), on the same terms, conditions and covenants set forth in this Lease, except as provided below. Each Option may be exercised only by written notice delivered to the Landlord no earlier than One Hundred Eighty ( 180 ) days before, and no later than One Hundred Twenty ( 120 ) days before, the expiration of the Term or the preceding Extension of the Term, whichever is applicable. If Tenant fails to deliver to Landlord a written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options will lapse, and there will be no further right to extend the Term. Each Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease. The Options are personal to Tenant and may not be exercised by an assignee or subtenant without Landlord's written consent. 2. Calculation of Rent. The Base Rent during the Extension(s) will be determined by one of the following methods [check one]: FA. Fair Market Rental. The Base Rent during the Extension will be the Fair Market Rental determined as follows: a. The "Fair Market Rental" of the Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of Premises comparable to the Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant's intention to elect to exercise the renewal Option, Landlord shall, within 180 days thereafter, notify Tenant in writing of Landlord's proposed Fair Market Rental amount, and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landlord's proposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within 120 days after receipt of Landlord's notice will be deemed Tenant's acceptance of Landlord's proposed Fair Market Rental amount. b. If Landlord and Tenant have not been able to agree on the Fair Market Rental amount within 40 days following the exercise of the Option, the Fair Market Rental for the Extension will be determined by the following appraisal process. Landlord and Tenant shall endeavor in good faith to select a single Appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. If Landlord and Tenant are able to agree upon and select a single Appraiser, that Appraiser will determine the Fair Market Rental for the Extension. If Landlord and Tenant are unable to agree upon a single Appraiser within days after the end of the 40 -day period, each will then appoint one Appraiser by written notice to the other, given within days after the end of the 40 -day period. Within five business days after the two Appraisers are appointed, the two Appraisers will appoint a third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time period, the single Appraiser appointed will determine the Fair Market Rental amount of the Premises. Each party will bear the cost of the appraiser appointed by it and the parties will share equally the cost of the third appraiser. The Fair Market Rental of the Premises will be the average of two of the three appraisals that are closest in amount, and the third appraisal will be disregarded. ADDENDUM "A" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940,891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLogix.com Exhibit 7 - Incentive Agreement c. In no event will the Base Rent be reduced for any Extension, regardless of the Fair Market Rental determined by any appraisal. If the Fair Market Rental is not determined before the commencement of the Extension, then Tenant shall continue to pay to Landlord the Base Rent applicable to the Premises immediately before the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord the difference between the Base Rent actually paid by Tenant to Landlord and the new Base Rent. ❑ B. Consumer Price Index Adjustment. The monthly Base Rent during the Extension will be determined by multiplying the monthly installment of Base Rent during the last month of the Term by a fraction determined as follows: a. The numerator will be the Latest Index that means either [check one]: ❑ (1) the Index published for the nearest calendar month preceding the first day of the Extension, or ❑ (2) the Index for the month of Extension. preceding the first day of the b. The denominator will be the Initial Index that means either [check one]: ❑ (1) the Index published for the nearest calendar month preceding the Commencement Date, or ❑ (2) the Index for the month of Date. preceding the Commencement [If no blanks are filled in above, the choice (1) including the phrase "the nearest calendar month preceding" will apply. If the Index is not yet published for the nearest calendar month preceding the applicable date, then "the nearest calendar month" means the first month preceding the applicable date for which the Index is published]. c. The Index means the Consumer Price Index (CPI) for All Urban Consumers (All Items) U.S. City Average (unless this box is checked ❑ in which case the CPI for the Dallas /Fort Worth Consolidated Metropolitan Statistical Area will be used) published by the U. S. Department of Labor, Bureau of Labor Statistics (Base Index of 1982 -84 =100). If the Index is discontinued or revised, the new index or computation that replaces the Index will be used in order to obtain substantially the same result as would have been obtained if it had not been discontinued or revised. If such computation would reduce the Rent for the particular Extension, it will be disregarded, and the Rent during the immediately preceding period will apply instead. ❑ C. Fixed Rental Adjustments. The monthly installments of Base Rent during the Extension(s) will be increased beginning on the following dates to these amounts: Date: Amount: $ Date: Amount: $ Date: Amount: $ Date: Amount: $ ADDENDUM "A" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/14) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www,zir)Logix.com City of Denton Exhibit 7 - Incentive Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "B" TO LEASE CONSTRUCTION OF IMPROVEMENTS BY LANDLORD Address of the Premises: 608 E Hickory St, Ste 128, Denton, Tx 76201 1. Plans. Landlord agrees to construct (or complete) improvements to the Premises in accordance with plans and specifications (the "Plans ") to be promptly prepared by Landlord and delivered to Tenant. If Tenant does not respond to the request for approval of the Plans within five days after Tenant's receipt of the Plans, Tenant will be deemed to have approved the Plans. Upon approval by Tenant, two or more sets of the Plans will be signed by both parties, with one signed set retained by each party. Changes to the Plans may be made only by written amendments signed by both parties. 2. Construction of Improvements. Upon approval of the Plans and the cost of construction, Landlord shall promptly begin construction and pursue the construction to its completion with reasonable diligence and in a good and workmanlike manner. 3. Estimated Completion Date. It is estimated by Landlord that the improvements specified in the Plans will be completed by March 1 2016 (the "Estimated Completion Date "). 4. Notice of Completion. Landlord shall deliver a written notice to Tenant that the improvements have been completed in accordance with the Plans, specifying the date (the "Date of Completion ") the improvements were completed, within two days after the Date of Completion. Tenant shall then promptly inspect the improvements, and if they have in fact been completed in accordance with the Plans, then the Term will begin upon the Date of Completion or on the Commencement Date, whichever is later. 5. Objections. If Tenant reasonably determines that the improvements have not been completed in accordance with the Plans, Tenant may deliver a written notice to Landlord specifying the incomplete items. If Tenant does not, within 10 days after Landlord's notice of completion, deliver such a written notice to Landlord, then Tenant will be deemed to have approved the improvements as constructed, and the Date of Completion stated in Landlord's notice will be the Date of Completion. If the improvements have not in fact been completed in accordance with the Plans, and Tenant has delivered to Landlord a written notice specifying the incomplete items, then Landlord shall promptly proceed to finish the incomplete items, and the Term will begin upon the date the items are In fact complete. 6. Substantial Completion. Completion, as used in this Addendum, means Substantial Completion. "Substantial Completion" will be deemed to have occurred when (i) a Certificate of Occupancy is issued by the local municipal authorities that have jurisdiction over the Premises, and (ii) the construction is sufficiently complete In accordance with the Plans so that Tenant is able to occupy the Premises for the Permitted Use, except for minor "punch list" items remaining to be completed. 7. Letter of Acceptance. Upon Substantial Completion of the improvements to the Premises, Tenant agrees to execute and deliver to Landlord, with a copy to the Principal Broker, a letter (the "Letter of Acceptance ") addressed to Landlord and signed by Tenant (or Tenant's authorized representative) acknowledging: (i) that construction has been completed in accordance with the Plans; (ii) acceptance of the improvements (subject to "punch list" items to be completed); (iii) the Date of Completion, and (iv) the Commencement Date of the Term. 8. Taking of Possession. The taking of possession of the Premises by Tenant will be deemed to be acknowledgment by Tenant that construction has been completed in accordance with Plans (except for any latent defects and "punch list" items) and that the Term has begun as of the Date of Completion, regardless of whether a Certificate of Occupancy has been issued or Tenant has delivered a Letter of Acceptance. ADDENDUM T" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zioLoaix.com Exhibit 7 - Incentive Agreement 9. Failure to Complete. If the improvements have not been completed in accordance with the Plans by the Estimated Completion Date, or by such date as extended by application of Section 16.02 (Force Maieure), Tenant may give Landlord a written notice of Tenant's Intention to terminate as of a certain date specified by Tenant in the notice (the "Termination Date ") if such improvements have not been completed by the Termination Date. The notice must be given to Landlord not less than 20 days before the Termination Date. If the improvements have not been completed by the Termination Date, then this Lease will terminate, with no further liability of one party to the other, unless the Termination Date is extended by Tenant in writing. If Landlord is able to cause Substantial Completion of the improvements to occur before the Termination Date, then this Lease will not terminate. 10. Finish -Out Allowance. Landlord shall pay the cost of construction under this Addendum in an amount not to exceed $ 552 960.00 (the "Landlord's Cost "). If an Addendum for Construction of Improvements by Tenant is also attached to this Lease, then Landlord may also provide an Allowance (as defined in that Addendum) to be applied to the cost of construction in that Addendum. Tenant shall pay any costs of construction in excess of the Landlord's Cost and any Allowance. ADDENDUM "B" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLoaix.com City of Denton Exhibit 7 - Incentive Agreement Axis Realty Group NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS® ADDENDUM "G" TO LEASE RULES AND REGULATIONS Address of the Premises: 608 E. Hickory St, Ste 128, Denton, TX 76201 1. Application. Tenant, and Tenant's employees and invitees, shall abide by the following standards for the mutual safety, cleanliness, care, protection, comfort and convenience of all tenants and occupants of the Property. These Rules and Regulations apply to all of the Property as defined in this Lease including, but not limited to, the Premises, the building(s), the parking garages, if any, the common areas, driveways, and parking lots. 2. Consent Required. Any exception to these Rules and Regulations must first be approved in writing by Landlord. For purposes of these Rules and Regulations, the term "Landlord" includes the building manager, the building manager's employees, and any other agent or designee authorized by Landlord to manage or operate the Property. 3. Rules and Regulations: a. Tenant may not conduct any auction, "flea market" or "garage sale" on the Premises nor store any goods or merchandise on the Property except for Tenant's own business use. Food may not be prepared in the Premises except in small amounts for consumption by Tenant and Tenant's officers and employees. Vending machines or dispensing machines may not be placed in the Premises without Landlord's written approval. The Premises may not be used or occupied as sleeping quarters or for lodging purposes. Animals may not be kept in or about the Property. b. Tenant shall not obstruct sidewalks, driveways, loading areas, parking areas, corridors, hallways, vestibules, stairs and other similar areas designated for the collective use of tenants, or use such areas for Tenant's storage, temporary or otherwise, or for any purpose other than going to and from the Premises. Tenant shall comply with parking rules and guidelines as may be posted on the Property from time to time. c. Tenant shall not make any loud noises, unusual vibrations, unpleasant odors, objectionable or illegal activities on the Property. Tenant shall not permit the operation of any equipment in the Premises that annoys other occupants of the Property. Tenant shall not interfere with the possession of other tenants of the Property. d. Tenant may not bring any flammable, explosive, toxic, noxious, dangerous or hazardous materials onto the Property, except in small quantities as needed in Tenant's business and used, stored, and disposed of in accordance with applicable laws. e. Installation of security systems, telephone, television and other communication cables, fixtures and equipment must comply with Section 7.04 of the Lease, except that routine installation and construction of normal communication devices that do not require any holes in the roof or exterior walls of the Property do not require the written approval of Landlord. f. Movement into or out of the building through public entrances, lobbies or corridors that requires use of a hand truck, dolly or pallet jack to carry freight, furniture, office equipment, supplies and other large or heavy material, must be limited to the service entrances and freight elevators only and must be done at times and in a manner so as not to unduly inconvenience other occupants of the Property. All wheels for such use must have rubber tires and edge guards to prevent damage to the building. Tenant shall be responsible for and shall pay all costs to repair damages to the building caused by the movement of materials by Tenant. ADDENDUM "G" TO LEASE — Page 1 ©NTCAR 2014 — Form No. 2 (3/2014) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.z!pLoqlx.com Exhibit 7 - Incentive Agreement g. Requests by Tenant for building services, maintenance and repair must be made in writing to the office of the building manager designated by Landlord and must be dated. Tenant shall give prompt written notice to Landlord of any significant damage to or defects in the Premises or the Property, including plumbing, electrical and mechanical systems, heating, ventilating and air conditioning systems, roofs, windows, doors, foundation and structural components, regardless of whose responsibility it is to repair such damage or defects. h. Tenant shall not change locks or install additional locks on doors without the prior written consent of Landlord. If Tenant changes locks or installs additional locks on the Property, Tenant shall provide Landlord with a copy of each separate key to each lock upon Landlord's request. Upon termination of Tenant's occupancy of the Premises, Tenant must surrender all keys to the Premises and the Property to Landlord. i. Harmful liquids, toxic wastes, bulky objects, insoluble substances and other materials that may cause clogging, stains or damage to plumbing fixtures or systems must not be placed in the lavatories, water closets, sinks, or drains. Tenant must pay the costs to repair and replace drains, plumbing fixtures and piping that is required because of damage caused by Tenant. j. Tenant shall cooperate with Landlord and other occupants of the Property in keeping the Property and the Premises neat and clean. Nothing may be swept, thrown or left in the corridors, stairways, elevator shafts, lobbies, loading areas, parking lots or any other common areas on the Property. All trash and debris must be properly placed in receptacles provided therefor. k. Landlord may regulate the weight and position of heavy furnishings and equipment on the floor of the Premises, including safes, groups of filing cabinets, machines, and any other item that may overload the floor. Tenant shall notify Landlord when heavy items are to be taken into or out of the building, and the placement and transportation of heavy items may be done only with the prior written approval of Landlord. I. No window screens, blinds, draperies, awnings, solar screen films, window ventilators or other materials visible from the exterior of the Premises may be placed in the Premises without Landlord's approval. Landlord is entitled to control all lighting that may be visible from the exterior of the building. m. No advertisement, sign, notice, handbill, poster or banner may be exhibited, distributed, painted or affixed on the Property. No directory of tenants is allowed on the Property other than that provided by Landlord. n. Tenant agrees to cooperate with and assist Landlord in the prevention of peddling, canvassing and soliciting on the Property. o. Tenant accepts any and all liability for damages and injuries to persons and property resulting from the serving or sales of alcoholic beverages by or on behalf of Tenant on or from the Property. p. Any person entering and leaving the building before and after normal working hours, or building hours if posted by Landlord, whichever applies, may be required to identify himself to security personnel by signing a list and giving the time of day and destination or location of the applicable Premises. Normal building business hours are established by Landlord from time to time. 4. Revisions. Landlord reserves the right to revise or rescind any of these Rules and Regulations and to make additional rules that Landlord may determine are necessary from time to time for the safety, protection, comfort and convenience of the tenants and visitors of the Property and for the care, protection and cleanliness of the Property. Revisions and additions will be binding upon the Tenant as if they had been originally prescribed herein when furnished in writing by Landlord to Tenant, provided the additions and revisions apply equally to all tenants occupying the Property and do not impose any substantial cost to Tenant. 5. Enforcement. Any failure or delay by Landlord in enforcing these Rules and Regulations will not prevent Landlord from enforcing these Rules and Regulations in the future. If any of these Rules and Regulations is determined to be unenforceable, it will be severed from this Lease without affecting the remainder of these Rules and Regulations. ADDENDUM "G" TO LEASE — Page 2 ©NTCAR 2014 — Form No. 2 (3/2014) Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www zipLooix.com City of Denton Exhibit 7 - Incentive Agreement Axis Realty Group EXHIBIT "A" SURVEY AND /OR LEGAL DESCRIPTION 608 E. Hickory St, Ste 128, Denton, TX 76201 East Hickory Addition, Lots 1 & 2, Block A EXCLUSIVE LISTING AGREEMENT ©Copyright 2014 NTCAR Form No. 4 (7- 22 -14) Axis Realty Group, 1517 Centre Place Drive Denton, TX 76205 Phone: 940.891.2947 Fax: 940.891.2948 Alex Payne City of Denton Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.zipLociix.com Exhibit 7 - Incentive Agreement Axis Realty Group EXHIBIT "C" INFORMATION ABOUT BROKERAGE SERVICES Texas law requires all real estate licensees to give the following information about brokerage services to prospective buyers, tenants, sellers and landlords. Before working with a real estate broker, you should know that the duties of a broker depend on whom the broker represents. If you are a prospective seller or landlord (owner) or a prospective buyer or tenant (buyer), you should know that the broker who lists the property for sale or lease is the owner's agent. A broker who acts as a subagent represents the owner in cooperation with the listing broker. A broker who acts as a buyer's agent represents the buyer. A broker may act as an intermediary between the parties if the parties consent in writing. A broker can assist you in locating a property, preparing a contract or lease, or obtaining financing without representing you. A broker is obligated by law to treat you honestly. IF THE BROKER REPRESENTS THE OWNER: The broker becomes the owner's agent by entering into an agreement with the owner, usually through a written listing agreement, or by agreeing to act as a subagent by accepting an offer of subagency from the listing broker. A subagent may work in a different real estate office. A listing broker or subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first. The buyer should not tell the owner's agent anything the buyer would not want the owner to know because an owner's agent must disclose to the owner any material information known to the agent. IF THE BROKER REPRESENTS THE BUYER: The broker becomes the buyer's agent by entering into an agreement to represent the buyer, usually through a written buyer representation agreement. A buyer's agent can assist the owner but does not represent the owner and must place the interests of the buyer first. The owner should not tell a buyer's agent anything the owner would not want the buyer to know because a buyer's agent must disclose to the buyer any material information known to the agent. IF THE BROKER ACTS AS AN INTERMEDIARY: A broker may act as an intermediary between the parties if the broker complies with The Texas Real Estate License Act. The broker must obtain the written consent of each party to the transaction to act as an intermediary. The written consent must state who will pay the broker and, in conspicuous bold or underlined print, set forth the broker's obligations as an intermediary. The broker is required to treat each party honestly and fairly and to comply with The Texas Real Estate License Act. A broker who acts as an intermediary in a transaction: (1) shall treat all parties honestly; (2) may not disclose that the owner will accept a price less than the asking price unless authorized in writing to do so by the owner; (3) may not disclose that the buyer will pay a price greater than the price submitted in a written offer unless authorized in writing to do so by the buyer; and (4) may not disclose any confidential information or any information that a party specifically instructs the broker in writing not to disclose unless authorized in writing to disclose the information or required to do so by The Texas Real Estate License Act or a court order or if the information materially relates to the condition of the property. With the parties' consent, a broker acting as an intermediary between the parties may appoint a person who is licensed under The Texas Real Estate License Act and associated with the broker to communicate with and carry out instructions of one party and another person who is licensed under that Act and associated with the broker to communicate with and carry out instructions of the other party. If you choose to have a broker represent you, you should enter into a written agreement with the broker that clearly establishes the broker's obligations and your obligations. The agreement should state how and by whom the broker will be paid. You have the right to choose the type of representation, if any, you wish to receive. Your payment of a fee to a broker does not necessarily establish that the broker represents you. If you have any questions regarding the duties and responsibilities of the broker, you should resolve those questions before proceeding. OWNER: Date: EXCLUSIVE LISTING AGREEMENT ©Copyright 2014 NTCAR Form No. 4 (7- 22 -14) Axis Realty Group, 1517 Centre Place D6%e Denton, TX 76205 Phone: 940.891.2947 Pax: 940.891.2948 City of Denton Alex Payne Produced with zipForm® by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 www.ziplooix.com sAlegal\our documents \ordinances \15 \ordinance approving rail yard lease and incentive agreements updated 9- 9- 15.docx Exhibit 8 - Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT FOR AN INCENTIVE GRANT BETWEEN THE CITY OF DENTON AND RAIL YARD PARTNERS, LTD; AND A COMMERCIAL LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND RAIL YARD PARTNERS, LTD. INVOLVING DEVELOPMENT AT THE PROPERTY LOCATED AT 608 EAST HICKORY STREET, DENTON, TEXAS, 76201; PROVIDING AUTHORITY FOR THE CITY MANAGER TO EXECUTE THE AGREEMENTS SUBJECT TO FINAL LANGUAGE APPROVAL BY THE CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on September 16, 2014, the City of Denton adopted the 2014/15 Program of Services and Budget, including a line item for a technology recruitment initiative; and WHEREAS, on the 7t" day of December, 2010, the City of Denton, Texas (the "City ") established Tax Increment Reinvestment Zone (TIRZ) Number One (Downtown TIF) (Ordinance 2010 -316) as authorized by Chapter 311 of the Texas Code (the "Act "); and WHEREAS, on the 5"' day of August, 2014, the City of Denton, Texas amended the Tax Increment Reinvestment Zone Number One Project Plan to allow the City of Denton to utilize City -owned property located in a reinvestment zone to facilitate economic projects which the City and TIF Board deem appropriate and desirable. The City may acquire, lease, sell or otherwise transfer property to accomplish the public purpose of economic development that is consistent with the Project Plan; 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 "); and WHEREAS, to effectuate the Program, the City and Grantee have negotiated an Economic Development Agreement for an incentive grant (the "Grant Agreement "), a copy of which is attached hereto and made a part hereof by reference; and WHEREAS, to effectuate the Program, the City and Grantee have negotiated a Commercial Lease Agreement (the "Lease Agreement "), a copy of which is attached hereto and made a part hereof by reference; and WHEREAS, the City Council finds that the Program, the Grant Agreement, and the Lease 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. sAlegal \our documents \ordinances \15 \ordinance approving rail yard lease and incentive agreements updated 9 -9 -i 5.docx Exhibit 8 - Ordinance SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Grant Agreement on behalf of the City of Denton and to carry out the City's responsibilities and rights under the Grant Agreement, including without limitation the authorization to make the expenditures set forth in the Grant Agreement. SECTION 3. The City Manager, or his designee, is hereby authorized to execute the Lease Agreement on behalf of the City of Denton and to carry out the City's responsibilities and rights under the Lease Agreement, including without limitation the authorization to make the expenditures set forth in the Lease Agreement. SECTION 4. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties as set forth in the Grant Agreement and the Lease Agreement. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a change in zoning classification from Neighborhood Residential 4 (NR -4) to Neighborhood Residential 2 (NR -2) and approving a Specific Use Permit (SUP) for an Equestrian Facility on approximately 1.003 acres of property, generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (Z15 -0008 and 515- 0006). The Planning and Zoning Commission recommends approval of this request (7 -0). BACKGROUND The applicant, on behalf of Robert F. Williams of Ranch Hand Rescue, would like to develop the site as an Equestrian Facility in order to accommodate an Equine /Animal Assisted Counseling (EAAC) program as a primary use and a sanctuary for rescued animals as an accessory use. The current zoning does not permit Equestrian Facilities; therefore, the applicant is seeking a zoning change to NR -2 District with a Specific Use Permit (SUP) for an Equestrian Facility. As a nonprofit organization, Ranch Hand Rescue rehabilitates abused and neglected animals and incorporates them into an Equine /Animal Assisted Counseling (EAAC) program. The EAAC allows clients, mainly children, to overcome trauma, grief, or addiction by interacting with the animals under the guidance of a Licensed Professional Counselor. If approved, the counseling services would accommodate one to two clients at a time for a maximum of six to twelve clients a day during business hours, seven days a week. Additionally, groups of approximately ten children at a time would work at the facility in order to satisfy court - ordered community service. This proposed use falls under the Denton Development Code's (DDC) definition of an Equestrian Facility, which is not permitted under the current zoning, but is permitted with an SUP in the NR -2 zoning district. The subject property is developed with two metal structures, and approximately 12,100 square feet of the one - acre parcel lies within the City of Denton's Extraterritorial Jurisdiction. In order to accommodate the counselors' offices and ranch supplies, the applicant proposes a 1,000 square foot building with log cabin architecture and a hay barn in addition to the existing structures. Staff has analyzed the proposal and has determined that it conforms to the conditions for approval set forth in City of Denton Page 1 of 3 Printed on 9/10/2015 File M Z15 -0008 & S15 -0006, Version: 1 Sections 35.3.4.13 and 35.6.4 of the Denton Development Code (DDC), is compatible with the adjacent land uses, and meets the goals of the Denton Plan 2030. The surrounding property includes several residential zoning designations and a variety of uses, including an Equestrian Facility to the north. A zoning change to NR -2 District expands the adjacent NR -2 District, and the permitted uses within NR -2 District are compatible with the existing development. Since many of the adjacent residential dwellings include accessory agricultural and equestrian uses, the introduction of rescue animals as part of the SUP for an Equestrian Facility is consistent with the current rural character of the area and will not create a nuisance at this time. The Denton Plan 2030 designates the subject property and the surrounding area as Rural Areas. This designation includes farms and ranches with very low - density residential and rural commercial uses. Half -acre lots may be permitted under the gross density provision in order to provide for conservation development, a development pattern whereby smaller lots are clustered together to permanently protect rural open space. Rezoning the subject property to NR -2 will reduce the maximum density and increase the minimum lot size, conforming to the Future Land Use Designation of the subject property. Furthermore, an Equestrian Facility is consistent with the Future Land Use Designation of Rural Areas, as it meets the intent to encourage very low - density residential, rural commercial, and farm and ranch uses. While it is not anticipated that the activities associated with the proposed use will impede the normal and orderly development of the area, in order to ensure that the use will continue to be compatible as the area grows and evolves, staff recommends a condition that the SUP expire five years from the approval date. With this condition, the applicant must apply for a new SUP prior to the expiration, and at that time, the use will be analyzed with the approval criteria to determine if any new conditions are necessary to ensure compatibility. It should be noted that the property owner has been notified of this condition and disagrees with establishing an expiration of the SUP. In the original analysis completed by staff, an error was made in a recommended condition that limited the maximum effective area for a ground sign to 60 square feet. This condition exceeds the permitted effective area for ground signs in a residential district, as Section 33.14 of the Code of Ordinances places a limit of 50 square feet. The recommended condition has been modified to reflect the correct maximum effective area. A thorough analysis of the proposed land use and its impacts to the surrounding area is reflected in the Staff Analysis. To comply with the public hearing notice requirements, 9 notices were sent to property owners within 200 feet of the subject property, and 8 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the subject property. As of the writing of this staff report, staff has received one response in favor of the rezoning and SUP requests. Neighborhood meetings are not required, but staff strongly recommends that an applicant conduct a neighborhood meeting in order to inform area residents and property owners of the proposed development. Although a neighborhood meeting was recommended to the applicant, he declined the request to hold a meeting. OPTIONS City of Denton Page 2 of 3 Printed on 9/10/2015 File #: Z15 -0008 & S15 -0006, Version: 1 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Development Review Committee recommends approval of this request, with the following conditions: 1. The approval of the Specific Use Permit shall expire five years from the date that the ordinance is approved. At that time, approval for a new Specific Use Permit for an Equestrian Facility will be required. 2. Only a monument sign is permitted, solid from the ground up, made of stone posts and a stone base with a wood or stone display face to complement the ranch architecture of the area. The sign shall have a maximum effective area of 50 square feet and a maximum height of 6 feet. No illumination of the sign is permitted. The Planning and Zoning Commission recommends approval of this request (7 -0), with no conditions. PRIOR ACTION/REVIEW (Council, Boards, Commissions) A public hearing was held at the August 19, 2015 Planning and Zoning Commission meeting. FYHIRITC 1. Staff Analysis 2. Site Location/Aerial Map 3. Zoning Map 4. Future Land Use Map 5. Permitted Uses in Neighborhood Residential 4 6. Permitted Uses in Neighborhood Residential 2 7. Applicant's Project Narrative 8. Zoning Exhibit 9. Public Notification Map and Community Responses 10. Planning and Zoning Commission Meeting Minutes 11. Draft Ordinance Respectfully submitted: Aimee Bissett Director, Planning and Development Prepared by: Julie Wyatt Associate Planner City of Denton Page 3 of 3 Printed on 9/10/2015 Planning Report Z15 -0008 & 515- 0006 /Ranch Hands Rescue City Council District 3 Planning & Zoning Commission August 19, 2015 Item 4A REQUEST: Consider making a recommendation to City Council regarding a rezoning request from Neighborhood Residential 4 (NR -4) District to Neighborhood Residential 2 (NR -2) District and a Specific Use Permit (SUP) for an Equestrian Facility. The approximately 1.0 acre site is generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane. OWNER: Robert F. Williams, Ranch Hands Rescue APPLICANT: Jerald Yensan BACKGROUND: The subject property was zoned as NR -4 District during the City -wide rezoning in 2002. The applicant, on behalf of Robert F. Williams of Ranch Hand Rescue, would like to develop the site as an Equestrian Facility in order to accommodate an Equine /Animal Assisted Counseling (EAAC) program as a primary use and a sanctuary for rescued animals as an accessory use. The current zoning does not permit Equestrian Centers; therefore, the applicant is seeking a zoning change to NR -2 District with a Specific Use Permit (SUP) for an Equestrian Facility. As a nonprofit organization, Ranch Hand Rescue rehabilitates abused and neglected animals and incorporates them into an Equine /Animal Assisted Counseling (EAAC) program. The EAAC allows clients, mainly children, to overcome trauma, grief, or addiction by interacting with the animals under the guidance of a Licensed Professional Counselor. According to the applicant's narrative, this is not a riding therapy program; however, "Using the rescued animals enhances the effectiveness of the counseling sessions as the clients can relate to the trauma and challenges the animal faced." Counselors may assist returning Veterans, adults, and families in crisis, although 75% of the clients are children who have suffered grief, trauma, abuse, addiction, or have entered Denton County Juvenile Court. If approved, the counseling services would accommodate one to two clients at a time for a maximum of six to 12 clients a day during business hours, seven days a week. Additionally, groups of approximately 10 children at a time would work at the facility in order to satisfy court - ordered community service. Many area organizations refer clients to Ranch Hand Rescue, including Children's Advocacy Center for Denton County, North Texas Eating Disorders, Winning the Fight, Family and Child Protective Services, and Denton County Juvenile. This facility would mainly provide counseling services to children who are first -time offenders and have not committed violent crimes. However, if a child were accused of a more serious offense, law enforcement officers would accompany the incarcerated juvenile during his or her counseling sessions or community service work to maintain security for the facility and the child. Pursuant to Section 35.23.2 of the Denton Development Code (DDC), Definitions, the proposed use of the subject property would be Equestrian Facilities, which is, "A structure or area for horseback riding activities including boarding, training, lessons, and shows." Although the proposed use does not include horseback riding, it involves the care of abused and neglected horses in conjunction with counseling sessions, and therefore meets the definition of Equestrian Facility. SITE DATA: The subject property is approximately 1.0 acre and is generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane. The parcel is a narrow rectangle with approximately 76 feet of frontage on Fort Worth Drive, a Primary Major Arterial. It is developed with a gravel driveway and two metal structures, and approximately 12,100 square feet of the parcel lies within the City of Denton's Extraterritorial Jurisdiction. USE OF PROPERTY UNDER CURRENT ZONING: Neighborhood Residential 4 (NR -4) District is intended primarily for single- family uses with a minimum lot size of 7,000 square feet in subdivisions which contain less than two acres. For developments greater than two acres, there are no minimum lot sizes stipulated in the Denton Development Code (DDC); however, a maximum density of four dwelling units per acre is required. Permitted uses include Agriculture, Single- family Dwellings, Parks, Open Space, and Religious Institutions. Livestock and Duplexes are permitted with a Limitation. Attached single - family dwellings, Accessory Dwelling Units, Daycares and Elementary Schools are permitted with a Specific Use Permit (SUP). The permitted schedule of uses is attached for reference. SURROUNDING ZONING AND LAND USES: North: Properties to the north are zoned as NR -2 District and developed with a Single - Family Dwelling, Agricultural, and Equestrian uses. East: Property to the east is located within the City's ETJ and is developed with Farm and Ranch uses. South: Property to the south is zoned as NR -4 District and developed with a Manufactured Homes, Commercial use, and a Gas Well. West: Property to the west is zoned as Planned Development 174, Country Lakes (PD -174) and is developed with Single- family Dwellings. COMPATIBILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The purpose of the Neighborhood Residential land use is to preserve and protect existing neighborhoods and to ensure that any new development is compatible with existing land uses, patterns, and design standards. The proposed NR -2 District is a residential zoning designation, permitting a minimum lot size of 16,000 square feet in subdivisions which contain less than two acres. Open space is preserved with a maximum lot coverage of 30% and a minimum landscaped area of 70 %. Permitted uses in NR- 2 are residential in nature and compatible with the existing adjacent development. The NR -2 District also permits Agriculture, Single- family Dwellings, Parks, Open Space, and Religious Planning Report Project Number Page 2 of 9 Institutions. Uses which are permitted with a Limitation include Livestock, Kennels, and Veterinary Clinics. Manufactured Housing Developments and Equestrian Facilities are permitted with an SUP. The surrounding area includes several residential zoning designations, and a variety of uses, including an Equestrian Facility to the north. The residential dwellings are set back from Fort Worth Drive, either on large lots with accessory agriculture and livestock uses, or as part of inward - facing subdivisions. The requested NR -2 District's permitted uses and development pattern is compatible with the existing developments and zoning districts. NR -2 District restricts commercial uses and permits residential and agricultural uses on large lots, which is a continuation of the existing development uses and patterns. Furthermore, a zoning change to NR -2 District expands the existing adjacent NR -2 District and reduces the maximum permitted density for residential development. The proposed use of Equestrian Facility, which requires an SUP, is compatible with surrounding zoning and land uses. Typically, a use that requires an SUP is an appropriate use for the zoning district, but will require some conditions to ensure compatibility with the surrounding area and as the area develops per the Future Land Use designation. Since many of the adjacent residential dwellings include accessory agricultural and equestrian uses, the introduction of rescue animals is consistent with the rural character of the area and will not create a nuisance. Furthermore, traffic associated with the six to twelve daily counseling clients will not directly connect to any existing residential development, but will be accessed off of Fort Worth Drive. COMPREHENSIVE PLAN: Per the Denton Plan 2030, the Future Land Use designation of the subject property is Rural Areas. "Rural Areas" includes farms and ranches with very low - density residential and rural commercial uses. A maximum density of one dwelling unit per acre may be permitted in order to provide for conservation development, a development pattern whereby smaller lots are clustered together to permanently protect rural open space. According to Denton Plan 2030, "Development in this future land use category will continue the present character of the rural areas of Denton with low - profile homes of no greater than two stories, generous lots and setbacks, and materials that complement the natural surroundings and ranch heritage." Development criteria of Rural Areas future land use designation include: a) Development may include single- family homes on large lots as well as farms and ranches. b) Lots as small as half an acre under the gross density provision may allow for conservation development, which clusters smaller lots while permanently protecting scenic rural open space. c) Lots as small as one acre may allow for conservation development. d) Agricultural production, nurseries, and agricultural related structures are allow by right. e) The largely scenic character of this area should be maintained by ensuring that new development is sensitive to the surrounding built environment and natural context in scale and form. Rezoning the subject property to NR -2 will reduce the maximum density and minimum lot size, conforming to the Future Land Use Designation of the subject property. NR -2 allows for a Planning Report Project Number Page 3 of 9 maximum density of two dwelling units per acre, meeting the low - density goals in the Future Land Use Designation or Rural Areas. Land uses in NR -2 encourage residential development with rural character, including Single- family Dwellings, Kennels, and Veterinary Clinics. The proposed rezoning to NR -2 and the SUP to allow for an Equestrian Facility is consistent with the Future Land Use Designation of Rural Areas, as it meets the intent is to encourage very low - density residential, rural commercial, and farm and ranch uses. CONSIDERATIONS: The applicant is requesting a zoning change to NR -2 District with an SUP for an Equestrian Facility in order to accommodate a sanctuary for rescued animals and an Equine /Animal Assisted Counseling (EAAC) program. 2. A 1,000 square foot building with log cabin architecture and a hay barn are proposed in addition to the existing structures. 3. Per Section 35.3.4.B of the DDC, zoning changes may be approved if the proposed rezoning conforms to the Future Land Use element of the Denton Plan 2030, and that the proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. The proposed NR -2 zoning conforms to the Denton Plan 2030 and can facilitate adequate provision of transportation and public facilities. 4. Per Section 35.6.4 of the DDC, an SUP may be granted if the proposed use conforms, or can be made to conform through the imposition of conditions, with all standards within the NR -2 district. Additionally, the use must also be in conformance with The Denton Plan 2030. The proposed use of Equestrian Facility conforms to the standards of the NR -2 District and the Future Land Use designation of Rural Areas. 5. Per Section 35.6.4. B; a SUP shall be issued if it meets the following conditions: A. That the specific use will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; The proposed use will not be injurious to the use and enjoyment of other property within the vicinity of the site. The character of the surrounding area is generally residential with farm and ranch uses, and the activities associated with the proposed use, while more intense than a typical residential use, is sufficiently low impact as to not directly diminish or impair adjacent property values. B. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; The surrounding undeveloped property is zoned primarily for single- family uses. While it is not anticipated that the activities associated with the proposed use will impede the normal and orderly development of the area, in order to ensure that the use will continue to be Planning Report Project Number Page 4 of 9 compatible as the area grows and evolves, staff recommends a condition that the SUP expire five years from the approval date. With this condition, the applicant must apply for a new SUP prior to the expiration, and at that time, the use will be analyzed with the approval criteria to determine if any new conditions are necessary to ensure compatibility. It should be noted that the property owner has been notified of this condition and disagrees with establishing an expiration of the SUP. C. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; The site is accessed via off of Fort Worth Drive, and no additional access points will be required for the proposed use. Future impacts on public infrastructure or public facilities or services will be further evaluated and addressed with the review of the plat and building permits, prior to construction of any improvements on the subject property. D. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; The subject property will be accessed from Fort Worth Drive, and no access to the existing residential neighborhoods or properties will be provided. The proposed development, including structures and parking areas, must meet all applicable DDC requirements at building permit. E. That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration; Although the proposed use will house animals which produce odors, it does not generate additional odors, fumes, dust, or vibration that exceeds what a typical rural use would generate, and therefore will not create a negative impact. F. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and The proposed development shall comply with light and glare requirements outlined in the DDC and compliance with the DDC will be reviewed with the Building Permit plan application. G. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. Since many of the adjacent properties currently have farm and ranch uses, the animals associated with the proposal will create minimal nuisance for the adjacent properties. Planning Report Project Number Page 5 of 9 4. Per Section 35.6.4. C; a SUP shall be issued if adequate capacity of infrastructure can and will be provided to and through the subject property. Adequate capacity of infrastructure will be provided to and through the subject property. Argyle Water Supply Corporation will continue to provide water to the site and the applicant intends to use the existing septic system. 5. Per Section 35.6.4. D; a SUP shall be issued if the Special Use is compatible with and will not have an adverse impact on the surrounding area. When evaluating the effect of the proposed use on the surrounding area, the following factors shall be considered in relation to the target use of the zone: A. Similarity in scale, bulk, and coverage. The applicant intends to use the existing agricultural buildings in addition to constructing a 1,000 square foot building and 120 square foot hay barn as shown on the attached Zoning Exhibit. This scale, bulk, and coverage are similar to the adjacent properties and compatible with the rural residential character of the area. B. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. The proposed use of the property will not greatly increase the traffic on the surrounding street network. The Equestrian Facility will be used to rehabilitate abused and neglected animals and provide counseling services for one to two clients at any one time. This use may generate more trips per day than a residential use; however, the direct access to Fort Worth Drive, the low number of clients, and the few peak hour trips will make traffic impacts minimal. C. Architectural compatibility with the impact area. The applicant intends to use the existing agricultural buildings in addition to constructing a 1,000 square foot log structure and 120 square foot hay barn to accommodate counselors' offices and ranch supplies. Additionally, the applicant proposes to install a non - illuminated sign on the subject property. To mitigate any visual impacts associated with a sign, staff recommends permitting only a monument sign, solid from the ground up, made of stone posts and a stone base with a wood or stone display face to complement the ranch architecture of the area. The sign should have a maximum effective area of 60 square feet and a maximum height of 6 feet. No illumination of the sign should be permitted. With conditions placed upon the materials, type, and size of sign, the proposal will be compatible with the existing rural residential style of development. D. Air quality, including the generation of dust, odors, or other environmental pollutants. Planning Report Project Number Page 6 of 9 The proposed use does not generate dust, odors, or other environmental pollutants, and therefore will not create a negative impact. E. Generation of noise, light, and glare. The proposed use must meet the noise requirements outlined in the City's Code of Ordinances and the light and glare requirements outlined in 35.13.12 of the DDC. F. The development of adjacent properties as envisioned in The Denton Plan 2030. The Denton Plan 2030 designates the subject property and the surrounding area as Rural Areas. The intent is to encourage very low - density residential and rural commercial uses. The applicant proposes an Equestrian Facility to house abused and neglected animals and provide counseling services. This will have little impact on the surrounding area, allowing the adjacent properties to develop with a rural character. G. Other factors found to be relevant to satisfy the requirements of this Chapter. To accommodate for future development and changes in the surrounding area, the approval of the SUP should expire after five years in order to determine compatibility of the SUP with the surrounding land use pattern. 6. Neighborhood meetings are not required, but staff strongly recommends that an applicant conduct a neighborhood meeting in order to inform area residents and property owners of the proposed development. Although a neighborhood meeting was recommended to the applicant, he declined the request to hold a meeting. 7. The request conforms to the Future Land Use designation of Rural Areas and meets the goals of the Denton Plan 2030. NR -2 allows for a maximum density of two (2) dwelling units per acre, meeting the low - density goals in the Future Land Use Designation of Rural Areas. In addition, approval of an SUP for an Equestrian Facility is consistent with the Future Land Use Designation of Rural Areas. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, 9 notices were sent to property owners within 200 feet of the subject property, 8 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030, subject to the following conditions: Planning Report Project Number Page 7 of 9 1. The approval of the Specific Use Permit shall expire five years from the date that the ordinance is approved. At that time, approval for a new Specific Use Permit for an Equestrian Facility will be required. 2. Only a monument sign is permitted, solid from the ground up, made of stone posts and a stone base with a wood or stone display face to complement the ranch architecture of the area. The sign shall have a maximum effective area of 60 square feet and a maximum height of 6 feet. No illumination of the sign is permitted. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PROJECT TIMELINE: ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • Permitted Uses in Neighborhood Residential 4 • Permitted Uses in Neighborhood Residential 2 • Applicant's Project Narrative • Zoning Exhibit • Notification Map Planning Report Project Number Page 8 of 9 Business Days Business Subject Date under Days out DRC Review to Applicant Application Received May 22, 2015 1 st Submittal sent to DRC Members June 18, 2015 10 Comments Released to Applicant July 2, 2015 DRC Meeting with Staff July 9, 2015 Total Business Days 10 ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • Permitted Uses in Neighborhood Residential 4 • Permitted Uses in Neighborhood Residential 2 • Applicant's Project Narrative • Zoning Exhibit • Notification Map Planning Report Project Number Page 8 of 9 Prepared By: Julie Wyatt, Associate Planner Date: 08/03/2015 Reviewed By: Ron Menguita, AICP Development Review Committee Administrator Date: xx/xx/xx Reviewed By: Munal Mauladad Assistant Director of Planning and Development Date: xx/xx/xx Planning Report Project Number Page 9 of 9 5. PUBLIC HEARINGS: A. Hold a public hearing and consider making a recommendation to City Council regarding a rezoning request from Neighborhood Residential 4 (NR -4) to Neighborhood Residential 2 (NR -2) and a Specific Use Permit (SUP) for an Equestrian Center. The aproximately 1 acre site is _ generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane. (Z15 -0008 and 515 -0006, Ranch Hands Rescue, Julie Wyatt) Chair Reece opened the Public Hearing, he stated there are new procedures in place that require the Public Hearing to be opened prior to the presentation. Julie Wyatt, Associate Planner, provided the presentation. Wyatt provided the location map, zoning map, comprehensive plan, and site photos. Staff sent out nine (9) public hearing notices to property owners within 200 feet of the subject site and eight (8) courtesy notices to property owners within 500 feet of the subject site. At this time staff has received one (1) returned notice in favor of the request. Wyatt stated staff recommends approval of the request based on the following conditions: 1. the approval of the Specific Use Permit shall expire five years from the date that the ordinance is approved. At that time, approval for a new Specific Use Permit for an Equestrian Facility will be required; and 2. Only a monument sign is permitted, solid from the ground up, made of stone posts and a stone base with a wood or stone display face to complement the ranch architecture of the area. The sign shall have a maximum effective area of 60 square feet and a maximum height of 6 feet. No illumination of the sign is permitted. Commissioner Bentley questioned the parking requirements for this proposal. Julie Wyatt stated because the site would be zoned Neighborhood Residential -2 then gravel would be a permitted option. The review of the site plan will be completed with the building permit process. Wyatt stated the applicant is present. Bob Williams, applicant, 8827 S. US Hwy 377, Argyle, Texas. Williams provided a video of the current business that is primarily housed out of Argyle, Texas. This would be the second location, with six therapist on site. The development partners with CASA and the Children Advocacy Center. Williams provided a history on the site and the proposed individuals that would come to the site. He stated they do not have an issue with the sign. He would like to be able to install an overhead ranch style sign. He has spoken with the neighbors and they are in favor of the request. Commissioner Briggle questioned if he held a neighborhood meeting. Williams stated he met with the neighbors individually, there aren't many neighbors to hold a meeting. He stated he informed them on the Public Hearing. Commissioner Briggle questioned if the land will be leased or owned by the proposed business. Bob Williams, stated he purchased the land, and it is a 5016 organization that has partnered with CoSery Electric. There are also several other partners that have helped provided the furniture and other aspects of the proposed development. Commissioner Taylor questioned the applicant if he would be willing to put a cap on the square feet allowed to develop buildings in order to replace the five year limitation proposed by staff. Bob Williams stated if the square foot was capped at 2,000 he would be in favor of that recommendation. Commissioner Dudowicz questioned the issue with the sign requirements. Julie Wyatt stated a ground sign would not be permitted, which is what Williams is proposing. Dudowicz stated this Commission could allow a ground sign. Wyatt confirmed. There was no further discussion, Chair Reece closed the Public Hearing. Commissioner Bentley motioned to approve this request with the removal of staff conditions and to add a recommendation that the proposed ranch style sign would be allowed. Commissioner Briggle seconded. Commissioner Taylor made a superior motion to remove the sign requirements and to place a limitation on the amount of square foot building development allowed to 2,000 square feet. The superior motion failed due to a lack of a second. Commissioner Brian Bentley motioned, Commissioner Amber Briggle seconded to approve the request for Z15 -0008 and S15 -0006 with the removal of staffs conditions. Motion approved (7- 0). Commissioner Brian Bentley, "aye ", Commissioner Frank Conner, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Amber Briggle, "aye ", Commissioner Jim Strange, "aye ", Commissioner Devin Taylor, "aye ", and Chair Thom Reece, "aye ". ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A CHANGE IN ZONING CLASSIFICATION FROM NEIGHBORHOOD RESIDENTIAL 4 (NR -4) TO NEIGHBORHOOD RESIDENTIAL 2 (NR -2) AND APPROVING A SPECIFIC USE PERMIT (SUP) FOR AN EQUESTRIAN FACILITY ON APPROXIMATELY 1.003 ACRES OF PROPERTY, GENERALLY LOCATED ON THE EAST SIDE OF FORT WORTH DRIVE AND APPROXIMATELY 700 FEET SOUTH OF JOHNSON LANE; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0008 AND S 15- 0006). WHEREAS, Robert F. Williams has applied for a zoning change from a Neighborhood Residential 4 (NR -4) zoning district and use classification to a Neighborhood Residential 2 (NR -2) zoning district and use classification and to request a Specific Use Permit for an Equestrian Facility use on approximately 1.003 acres of land generally located on the East side of Fort Worth Drive and approximately 700 feet South of Johnson Lane, and legally described in Exhibit "A ", attached hereto and incorporated herein by reference (hereinafter, the "Property "); and WHEREAS, after notice published, a public hearing was held before the Planning and Zoning Commission in accordance with State law on August 19, 2015, whereby the Planning and Zoning Commission recommended approval (7 -0) of the requested zoning district and use classification change and Specific Use Permit; and WHEREAS, after notice published, a public hearing was held before the City Council in accordance with State law and the City Council hereby finds that the request is consistent with the Denton Plan and federal, state, and local law and that the Applicant has agreed to comply with all provisions of the Denton Development Code, as they exist, may be amended, or in the future arising, including but not limited to, this Ordinance, and has further agreed to comply with the additional restrictions and conditions set forth herein; and WHEREAS, the City Council has determined that it will be beneficial to Denton and its citizens to grant the SUP; that such grant will not be detrimental to the public welfare, safety, or health; and that the SUP should be granted; 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 zoning district and use classification for the Property is hereby changed from Neighborhood Residential 4 (NR -4) to Neighborhood Residential 2 (NR -2). SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. SUP Granted. The Specific Use Permit (SUP) to allow an Equestrian Facility on the Property is hereby approved, subject to the following conditions: The approval of the Specific Use Permit shall expire five years from the date that the ordinance is approved. At that time, approval for a new Specific Use Permit for an Equestrian Facility will be required. 2. Only a monument sign is permitted, solid from the ground up, made of stone posts and a stone base with a wood or stone display face to complement the ranch architecture of the area. The sign shall have a maximum effective area of 60 square feet and a maximum height of 6 feet. No illumination of the sign is permitted. SECTION 5. Failure to Comply. Except as otherwise stated above, all terms of the SUP shall be complied with prior to issuance of a Certificate of Occupancy. Failure to comply with any term or condition of the Ordinance will result in the SUP being declared null and void and of no force and effect. The SUP is issued to the entity named above and is assignable and transferable. SECTION 6. SUP Regulations. Upon notice to the property owner and a hearing before the City Council, a SUP may be revoked or modified if: 1. There is one or more of the conditions imposed by this Ordinance that has not been met or has been violated on the Property; or 2. The SUP was obtained or extended by fraud or deception; or 3. As otherwise permitted by law and /or Denton's Zoning Ordinance. SECTION 7. Effective date of SUP. The SUP shall be effective from and after the effective date of this Ordinance. Upon termination of the SUP, the Property shall cease to be used as provided herein unless another SUP or appropriate zoning has been obtained. SECTION 8. Unlawful use. It shall be unlawful for any person, firm, entity, or corporation to make use of the above - referenced Property in some manner other than as authorized by the Denton Code of Ordinances and this Ordinance. SECTION 9. Penalty. Any person, firm, entity or corporation violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00 for each violation. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. The penal provisions imposed under this Ordinance shall not preclude Denton from filing suit to enjoin the violation and it retains all legal rights and remedies available to it under local, state and federal law. SECTION 10. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 11. Effective Date of Ordinance. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record- Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: _. J (v CHRIS WATTS, MAYOR Exhibit A Legal Description BEING all that certain lot, tract, or parcel of land situated in the W. Hudson Survey Abstract Number 586 in the City of Denton, Denton County, Texas, being all that certain tract of land conveyed by deed from Fanny G. White to Bradley Dean Thomas and Kimberly Kay Thomas recorded under Document Number 2013 - 141349, Real Property Records, Denton County, Texas and being more particularly described as follows: BEGINNING at an iron rod found for corner in the east line of United States Highway Number 377, a public roadway, said point being the most westerly southwest corner of Lot 1, Block A of Redgate Pecan Estates, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet N, Page 233, Plat Records, Denton County, Texas; THENCE S 62° 15' 56" E, 570.32 feet with a south line of said Lot 1 to an iron rod found for corner at an inner ell of said Lot 1; THENCE S 26° 13' 21" W, 76.40 feet with a west line of said Lot 1 to an iron rod found for corner, said point being the northeast corner of the remnant of that certain tract of land conveyed by deed from Leon Parton and wife, Peggy Parton to Harvey A. Thompson recorded in Volume 754, Page 892, Deed Records, Denton County, Texas; THENCE N 620 16' 18" W, 572.84 feet with the north line of said Thompson remnant tract to an iron rod found for corner in said east line of said U. S. Highway; THENCE N 280 06' 46" E, 76.43 feet with said east line of said U. S. Highway to the PLACE OF BEGINNING and containing 1.003 acres of land. Z15 -0008 - Ranch Hands Rescue Aerial Map N y � Site W 0 50 100 20Feet fix 3 r l COD DENTON k tll rc�� g ��v re°Vmim rN &Ra ETJ �.........� Date: 8/4/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15 -0008 - Ranch Hands Rescue Zoning Map The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, of its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15-0008 - Ranch Hands Rescue Future Land Use Map ............... ............... ............................ 11" V ............................. /� . ......................................................... .. ............... AS/, Site COD N W - � E 0 50 100 200 Feet Rural Areas ETJ 1 S "A Igal Low Residential DENTON "[A�� Illlkinn�ng Departninent - C&S Date: 8/4/ �The City of Denton has p repared maps for departmental use. These am not official maps of the City of Denton and should not be used for legal, engineering or su rvey`9 purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein , its use, of its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Neighborhood Residential 4 Permitted Uses RESIDENTIAL: P Agriculture, Single- family Dwellings, Community Homes for the Disabled L(1), SUP Accessory Dwelling Units L(3) Duplexes L(7) Livestock SUP Attached Single- family Dwellings COMMERCIAL: P Home Occupation, Outdoor Recreation L(38) Temporary Uses INDUSTRIAL: L(27), SUP Gas Wells INSTITUTIONAL: P Parks and Open Space, Churches L(25) Basic Utilities SUP Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary Schools, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(1) — Subject to the following criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacks requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed one per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1,000 square feet GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off - street parking provisions of the DDC. 5. The maximum GHFA of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than 10 acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than 10 acres. L(3) — In a subdivision of two acres or more, up to two units may be attached by a common wall if the lots which contain the attached structure do not abut the perimeter lot lines of a subdivision, the individual common wall units are on separate lots designed to be sold individually, and the comply with Subchapter 13. Additionally, units must have the appearance of a single - family residence from the street. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9. Neighborhood Residential 2 Permitted Uses RESIDENTIAL: P Agriculture, Single- family Dwellings, Community Homes for the Disabled L(1), SUP Accessory Dwelling Units L(7) Livestock SUP Manufacture Housing Developments COMMERCIAL: P Home Occupation, L(38) Temporary Uses SUP Equestrian Facilities INDUSTRIAL: L(14) Veterinary Clinics L(27) Gas Wells L(37) Kennels Outdoor Recreation INSTITUTIONAL: P Parks and Open Space, Churches L(25) Basic Utilities SUP Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary Schools, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(1) — Subject to the following criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacks requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed one per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1,000 square feet GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off - street parking provisions of the DDC. 5. The maximum GHFA of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than 10 acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than 10 acres. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(14) — Uses are limited to no more than 10,000 square feet of gross floor area. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(37) — Five acre minimum land area required and no more than 25 kennels per acre allowed, included indoor and outdoor runs. A natural buffer stil is required adjacent to any residential use. L(38) — Must meet the requirements of Section 35.12.9. Ranch Hands Rescue C;DJNSH Ih1CI (:Ppq-' i A , AN, M,111 SANCrIJAPY 71��' 1 '11� 75% of RHR counseling clients are children. In 2014, 46% of the EAAC counseling sessions were provided, free of charge to families who cannot afford counseling. RHR is the only non-profit Equine/Animai therapy organization in the area that focuses only on mental and emotional health and is the only known organization in the U.S, that incorporates animals that have been abused and neglected into counseling sessions. Ranch Hand Rescue 8827 Highway 377 South Argyle,Fexas 76226 (940) 164-0985 iv-wwxanchhandrescue org bolD@,,ranctiliandrescue.org _a_ The property at 9457 will be used as a sanctuary for rescued animals and were EAAC sessions can be oxxIx I-E2 1328 $rvZin E 3 tto_'m6.i VIA >o.i > 12 m �'n o x" o r " jj zmx bo uz p �pwp °ak��BwWEa��o €i��$ W w�pp�sgaa$u}mW4$wo 9 ;�k� &�Nax�w�.`�k W a<a z i d� �Ho hb H��ya 1N olz Fo m ry ti e m � 3 W a � Q& U d U / nx. ff C \ x a H Q H a � °jti H vvi F Td 110 Ail N TiV j T .7r Hj 200ft Buffer COD N a 50 00 200 Feet W _ E y�i I if A 500ft Buffer ETJ1 DENTON a f ik Vtll mrc�� g ��v re°Vmim rN &Ra Site "11 ... Date: 7/27/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, of its interpretation. Utilization of this map indicates understanding and acceptance of this statement. ♦ � r. ws w, e. w...w wr ,n...r v w. m +ww ^rw a,. n n w w w +w x w .w w .r v J .®. w a +w :... x. .. .. NOTICE OF PUBLIC HEARING Z15 -0008 and S15 -0005 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, August 19, 2015, and consider making a recommendation to City Council regarding a rezoning request from Neighborhood Residential 4 (NR -4) to Neighborhood Residential 2 (NR -2) and a Specific Use Permit (SUP) for an Equestrian Center. The approximately 1 acre site is generally located on the east side of Fort Worth Drive and approximately 700 feet south of Johnson Lane. Please refer to the City's website (see link below) for staffs analysis. The staff analysis will be posted on Friday, August 14, 2015: btt : / /www.ci ofdentoii .comlizovernmenticiby&otiucil /city - council- azendas- minutes - vide ,os The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department Attn: Julie Wyatt, Project Manager 221 N. Elm ST Denton, Texas 76201 These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for siti ©n. Physical Address of Property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 - 940.349.8541 - (F) 940.349.7707 200' PSZ Nqko City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -823, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales Jr. DATE: September 15, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance granting approval, in accordance with Chapter 26 of the Texas Parks and Wildlife Code, of the non -park use of a part of North Lakes Park for the purpose of installing and maintaining a sanitary sewer line for the Vista Del Arroyo Offsite Utilities Project; providing for a notice by the City of Denton, Texas, of non -park use for installation and maintenance of sanitary sewer line and reservation of easement in the event of sale of park; and providing an effective date. The Parks, Recreation and Beautification Board recommends approval (5 -0). BACKGROUND Following a Chapter 26 proceeding on April 7, 2015, the City Council considered and granted a 20- foot -wide Public Utility Easement at Riney Road, along the north border of North Lakes Park and the G. Roland Vela Athletic Complex, to further the development of the Vista Del Arroyo Offsite Utilities Project. The easement granted from the Parks and Recreation Department to the City of Denton Utility Water Utilities Division is required via the Denton Development Code absent compensation. While undergoing the engineering phase, the presence of a box culvert previously routed under Hwy 77 prevented the sewer line from meeting minimum criteria for fall and coverage, necessitating a redesign and enhanced easement totaling 1,051 square feet, for a total length of 140.63 linear feet, to successfully complete this project. This 1,051 square foot (0.024 acre) tract of real property is located in the N.H. Meisenheimer Survey Abstract Number 810, City of Denton, in Denton County, Texas. And being a part of a 26.6 acre tract of land described in a deed to the City of Denton, Denton Texas as recorded in County Clerk's File Number 2012 - 146677 of the Real Property Records, Denton County, Texas. State law as defined in Chapter 26, Protection of Public Parks and Recreational Lands, of the Texas Parks and Wildlife Code requires that: (a) a municipality of this state may not approve any program or project that requires the use or taking of any public land designated and used prior to the arrangement of the program or project as a park unless the municipality, acting through its duly authorized governing body or officer, determines that: (1) there is no feasible and prudent alternative to the use or taking of such land; and (2) The prograin or project includes all reasonable planning to ininiinize hay in to the land, City of Denton Page 1 of 2 Printed on 9/10/2015 File #: ID 15 -823, Version: 1 as a park, resulting fi^oin the use or taking. (b) A finding inay be made only after notice and a hearing as required by this chapter. " OPTIONS Grant the request and continue development of the G. Roland Vela Athletic Complex. Deny the request and explore alternate routes. RECOMMENDATION The Parks and Recreation Department has satisfied publication requirements set forth in Chapter 26 of the Texas Parks and Wildlife Code and confirms they have investigated all other alternatives and determined there would be no major impact on current park operations or programs. After reviewing all other alternatives, staff recommends the granting of this 0.024 acre parcel of property as a Public Utility Easement, barring public objection at the Chapter 26 hearing and pending the approval of the City Council, the Texas Parks and Wildlife Department, and the National Park Service. ESTIMATED SCHEDULE OF PROJECT This project is scheduled to last from September to December of 2015. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Park, Recreation, and Beautification Board reviewed and recommended approval on August 3, 2015. (5 -0) FISCAL INFORMATION The donation of this easement is required by the Development Review Committee as a condition of developing the G. Roland Vela Athletic Complex. F,XHIRITS Exhibit 1- Excerpt of Parks, Recreation and Beautification Board Minutes of August 3, 2015 Exhibit 2- Sewer reroute construction drawing Exhibit 3- Chapter 26 Legal Ad Notification Exhibit 4- Legal Description and Survey Exhibit 5- Ordinance Respectfully submitted: Emerson Vorel Jr., Director Parks and Recreation City of Denton Page 2 of 2 Printed on 9/10/2015 Exhibit 1 EXCERPT from DRAFT MINUTES PARKS, RECREATION AND BEAUTIFICATION BOARD August 3, 2015 Civic Center Community Room After determining that a quorum of the City of Denton, Texas, Parks, Recreation and Beautification Board is present, the Chair of the Board thereafter convened into an open meeting on Monday, August 3, 2015, at 6:00 p.m. in the Denton Civic Center, 321 E. McKinney Street, Denton, Texas. Members Present: Janet Shelton, Chair; Alex Lieban, Paul Leslie, Tara Mills, and Maria Renner Members Absent: Russ Stukel, Vicki Byrd Staff present: Emerson Vorel, Julie Leal, John Schubert, Jim Mays and Janie McLeod OPEN MEETING ACTION ITEM: Consider making a recommendation to the Denton City Council regarding the following item: Chapter 26: Proposed 8 foot Public Utility Easement Extension Adjacent to the recently granted 20-foot-wide Public Utility Easement at G. Roland Vela Athletic Complex Mays reminded Park Board Members they previously considered a request regarding the development of the G. Roland Vela Athletic Complex at North Lake Parks, which involved the dedication of a 20 foot wide Public Utility Easement along the northern boundary of the property. The easement is required by Denton Development Code and will contain a 12 inch water line and an 8 inch sewer line. During development, it was discovered that the proposed depth does not meet minimum criteria for fall and coverage due to the structure of a box culvert placed beneath under Hwy 77. An additional 8 foot wide Public Utility Easement is required per redesign to intersect the drainage easement at a point further south of the location previously dedicated. The culvert connection will be made via a sewer manhole and the remainder of the sewer line and be installed consistent with the original easement. Board Members questioned the added expense associated with the redesign. Per Vorel, Parks is required to dedicated easement consistent with the City's Development Code. Associated expense is nominal and the majority of the expense is borne by the developer. Member Leslie made a motion to approve recommendation. Member Mills seconded. Motion passed 5 -0. There being no further deliberation regarding this matter, the Board advanced to the next Item. Following a motion by Member Leslie at the close of the meeting, seconded by Member Lieban, and a vote of 5 -0, the Board adjourned at 6:45 p.m. Exhibit 2 - -- - MATCH LINE STA. 6 ±00 -- EG-696 54 E-682 97 EG -695 00 t-111 12 EG 69381 N w 682.a / EG= 692.]8 o 8 6a2z2 a 1 o :, z JI EG -69, 29 EL= 681.09 a. aT -s, w u o- // _ o.E .o == 69a 58 4 y E-11' EG 60909 m f6 E SA EG 60925 � I o 212 LINE 688 41 0 m ee6 0 Ell 55 fL 600.9 EG-686,53 Sv a No Exca �... E6� EG-685,63 EE E04. 16 V MATCH LINE ST d 100 o _N r A O° 4� n c l O m Zm�+ II gas � md� D I 7J o (n ycq' e III a I m xm y 0 / / q f 'y' m CD D x�a oz�y y :4 ems °A `f y// =ma ".888888 SSS A p�2 o��m f ° ooaa e m m a os 91 '10 N A mm / x m g OFFSITE UTILTIY PLANS - ^ FOR ".rsr II• t ) BOSav, l / x p VISTA DEL ARROYO OFFSITE UTILITIES �` 1 Q m o �F 2 N }° ro Q � o CITY OF DENTON, DENTON COUNTY, TEXAS 2 e9 uoo rr�mear F ]asa Q STA. 6+00 TO STA. 1 +00 SANITARY SEWER PLAN & PROFILE Exhibit 3 Texas Parks and Wildlife Chapter 26 Notification for Water and Sewer Line Easements at Vela Athletic Complex in North Lakes Park In accordance with Chapter 26 of the Texas Parks and Wildlife Code, the City of Denton Parks and Recreation Department invites Denton residents to attend a public hearing to consider the adoption of an ordinance granting an 8' Public Utility Easement for the purpose of the installation and maintenance of an 8" sewer line along the northeast boundary of the property at G. Roland Vela Athletic Complex in North Lakes Park for a length of 132 feet, enclosing an area of 1,051.08 square feet or 0.0241 acres. Denton City Council will hold a public hearing to consider this potential transaction on Tuesday, Sept. 15, 2015, at 6:30 p.m. in the City Hall Council Chamber located at 215 E. McKinney St., Denton, Texas. For more information, please contact Jim Mays, Superintendent of Parks Planning, at (940) 349- 7465 or by email at jim.mays(c�cityofdenton.com. Exhibit AM Being all that certain lot, tract or parcel of land situated |n the Nelson H. Meisenheimer Survey, Abstract Number 81Oin the City mf Denton, Denton County' Texas and being a port of 26.800 acne tract of land described in a deed to the City of Denton. Denton County, Texas as recorded in County Clerk's File Number 2012-146677 of the Real Property Records, Denton County, Texas; the subject tract being particularly described amfollows; COMMENCING odo Texas Department of Transportation monumen found being in the Southerly line uf Riney Road and the Southwesterly line cfU.S. Highway 77(Ousineas) also know oeLocust Street and being the most Easterly Northeast corner ofsaid 2G.80O acre tract; Thence South 15 degrees 56 minutes 26 seconds West a distance of 20.74 feet to the POINT OF BEGINNING,- Thence South 58 degrees 45 minutes 30 seconds East a distance of 122.21 feet to a point; Thence South 00 degrees 12 minutes 56 seconds East a distance of 9.38 feet to a point; Thence North 58 degrees 45 minutes 30 seconds West a distance of 140.63 feet to a point; Thence South 89 degrees 21 minutes 38 seconds East a distance of 15.71 feet to the PLACE OF BEGINNING and enclosing 1051.O8 square feet of land more orless. OF Ap 4 ... . . ..... LID SURVEYING . 1720 WESTMINSTER DENTON, TX 76205 JOB NUMBER: 140451 P.U.E. DATE: 7-29-2015 KENNETH A. ZOLUNGER Exhibit 4 G) m i N 4 ry I I CO O �� ► Z MM NC.13t "1 "33 , ouCU)7D nrn6>X I * � m A 3CD Imo 0 C7(�"ZAm =soma o 0 r� rrrr �rncn - w r N rrr -�z / m r �) Z Z 0 Z U7 W cs p !.7 °�« 000a 0 CO D 3cmi� cn rn 'Z � W cp N + N + .p' yr .^ N a t7t cA 4) X Z {7 Ci 0 7C3 —3 � o a rora��a0 �� ° I m m m m m m A -4 Q )> ra 1 pNCm7ZQ GC?tZ< Zm -4000 m0 cp Q © [� cn 0 v 3n °i a, a co nNti c z R1 Z wci -twW aC7 m -n0 0 Z X ,tom v> >Z C9 Z / v C9 ' -pJ G) �/' W J � i �/f 0 /// r m I z� m p 0-4 m rn kk m U) ag p p/ s N 0 0o � mZco co 's m m �6 y % c Rp /ON o z Z � m �p m c 0 T � m cn � Exhibit 5 ORDINANCE NO. 2015 - AN ORDINANCE GRANTING APPROVAL, IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE, OF THE NON -PARK USE OF A PART OF NORTH LAKES PARK FOR THE PURPOSE OF INSTALLING AND MAINTAINING A SANITARY SEWER LINE FOR THE VISTA DEL ARROYO OFFSITE UTILITIES PROJECT; PROVIDING FOR A NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR INSTALLATION AND MAINTENANCE OF SANITARY SEWER LINE AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK; AND PROVIDING AN EFFECTIVE DATE. (Parks, Recreation and Beautification Board unanimously recommended approval.) WHEREAS, Chapter 26 of the Texas Parks of Wildlife Code provides that public land designated and used as a park may be used for a non -park purpose if the City Council finds after notice and hearing that there is not feasible and prudent alternative to the use of such land for the proposed project and the proposed project includes all reasonable planning to minimize harm to the park resulting from such use; and WHEREAS, the City of Denton desires to use approximately 165 linear feet along the northeast boundary of North Lakes Park ( "Park ") generally parallel to U.S. Hwy. 77 and south of the Riney Rd. /U.S. Hwy 77 intersection for the installation and maintenance of a sanitary sewer line for the Vista Del Arroyo Offsite Utilities Project ( "Project "); and WHEREAS, there are no feasible and prudent alternatives available for the location and installation and maintenance of a sanitary sewer line for the Project; and WHEREAS, the City provided notice in the Denton Record - Chronicle on August 14, 21, 28, 2015 and September 4, 2015 of a Public Hearing to be held on September 15, 2015 in the Council Chambers to consider the alternatives to the non -park use of the Park for the installation and maintenance of a sanitary sewer line; and WHEREAS, the City Council on September 15, 2015 received testimony at a public hearing on the issues of feasible and prudent alternatives to the non -park use of the Park for the Project and that the Project includes all reasonable planning to minimize harm to the Park resulting from the installation and maintenance of a sanitary sewer line; and WHEREAS, the City Council finds that the Project does not fall within the purview of Section 253.001 of the Texas Local Government Code; and WHEREAS, the City Council finds that there are no feasible and prudent alternatives to the non -park use of the Park and that the installation and maintenance of a sanitary sewer line includes all reasonable planning to minimize harm to the Park as a result of the Project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: Exhibit 5 SECTION 1. The installation and maintenance of a sanitary sewer line along the northeast boundary of North Lakes Park ( "Park ") generally parallel to Riney Road and U.S. Hwy. 77 ( "Park ") for the Vista Del Arroyo Offsite Utilities Project ( "Project ") shall be constructed and maintained below the surface of the Park in the area described and visually depicted in Exhibit "l," which is attached and made a part of this document, and that the surface of the Park after installation of the sanitary sewer line shall be constructed in a manner so that the Park may still be used for landscape plantings, fencing, signage, park related utilities, temporary facilities, which uses are hereby expressly approved and authorized, as necessary after completion of the Project in the same manner it was used prior to the Project. SECTION 2. The installation and maintenance of the sanitary sewer line shall be (i) in accordance with applicable City ordinances, rules and regulations, (ii) protect the patrons using the Park from injury and damage both during and after construction of the Project, and (iii) generally protect the health, safety and general welfare of the City. SECTION 3. During construction of the Project, temporary use of such additional Park property necessary to stage the construction of the improvements may be approved by the Director of Parks and Recreation Department. However, at the completion of the construction activities for the Project such additional Park property shall be restored to the condition to which it existed prior to the beginning of such construction activities. SECTION 4. This is for additional use of Park property for the Project separate and apart from that use granted under Ordinance 2015 -104. SECTION 5. The City Manager, or his designee, after approval by the City Attorney, shall execute the "NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF SANITARY SEWER LINE AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK" which is attached as Exhibit "2." SECTION 6. The rights and benefits set forth in this ordinance may not be assigned without the express written consent of the City. SECTION 7. The findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 8. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of September, 2015. CHRIS WATTS, MAYOR ATTEST: Exhibit 5 JENNIFER WALTERS, CITY SECRETARY 0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: FXHIRETh'.1" 8' PUBLIC UTILITY EASEMENT Being all that certain lot, tract or parcel of land situated in the Nelson H. Meisenheimer Survey, Abstract Number 810 in the City of Denton, Denton County, Texas and being a part of a 26.600 acre tract of land described in a deed to the City of Denton, Denton County, Texas as recorded in County Clerk's File Number 2012- 146677 of the Real Property Records, Denton County, Texas; the subject tract being particularly described as follows; COMMENCING at a Texas Department of Transportation monument found being in the Southerly line of Riney Road and the Southwesterly line of U.S. Highway 77 (Business) also know as Locust Street and being the most Easterly Northeast comer of said 26.600 acre tract; Thence South 15 degrees 56 minutes 26 seconds West a distance of 20.74 feet to the POINT OF BEGINNING; Thence South 58 degrees 45 minutes 30 seconds East a distance of 122.21 feet to a point; Thence South 00 degrees 12 minutes 56 seconds East a distance of 9.38 feet to a point; Thence North 58 degrees 45 minutes 30 seconds West a distance of 140.63 feet to a point; Thence South 89 degrees 21 minutes 38 seconds East a distance of 15.71 feet to the PLACE OF BEGINNING and enclosing 1051.08 square feet of land more or less. OF KENNETH Z(�tl(3ER 5312 tr S Lul 1720 \NE DENTON (9g4j3 J08 NULIBER 1DRAWN BY; D� - � r € j DATE: 72920 PAGE 1 OF 2 SURVEYING R.P.L.S. KENNETH A. XOLLINGER Exhibit 5 w /y'�� •! Z CC M K a N' Q N 7 /� / o �/fib ;m Q. QO Q p;Zm mm n w o 0 \ o N / NZ J U � � � oV' N W th ¢a<oocomrn� uu11 �n o u� co 4 0 m��lAZtnZZ w U) z ? Qw <W Z / 0 N U 0ZO0` O LL r W - U n N M f�0 h� co � Z O cV t1i O � n � i!7 Cp m t~L a N N o Z 0 d aow wit-- 2CON zWZto �yy h �owt0 �Q co ) ' w U7 IL < o �! OZLL CO 2w LO NaOU UV0�NK � w w � w � w U� Orm0 H�UU� C7��- v`Dic -°hm�o co 2d2 4() =U Z tp in N � � R QH Z Z W OZ � o g0Woh U.QZ�'U OZOop I0 wQ U QUWU ui o `LU Z h O ii m I I G N 0 N W 4 a � � � oV' N N th ¢a<oocomrn� uu11 �n o u� ao co 0 m��lAZtnZZ w ? Exhibit 5 EXHIBIT 112" 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. NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR INSTALLATION AND MAINTENANCE OF WATER LINE AND SANITARY SEWER LINE AND RESERVATION OF EASEMENT IN EVENT OF SALE OF PARK 1. Notice of Non -Park Use for Installation and Maintenance of Water Line and Sanitary Sewer On September 15, 2015, the City Council of the City of Denton, Texas, a Texas municipal home -rule corporation ( "City"), passed Ordinance No. 2015 - (See "Exhibit "A ") which allows the City, in accordance with the requirements of Chapter 26 of the Texas Parks and Wildlife Code, the permanent and perpetual use in, along, upon, under, over, and across a part of North Lakes Park ( "Park "), located at 2001 W. Windsor Dr., Denton, Denton County, Texas, for the sole purpose of installing, constructing, repairing, maintaining, altering, replacing, relocating, rebuilding, removing, and operating a water line and sanitary sewer line, and all necessary and related facilities and appurtenances. The specific location for the area of the Park used for the water line and sanitary sewer line is more particularly described, and visually depicted, in Exhibit `B." The portion of the Park containing the location of the water line and sanitary sewer line is more particularly described in Exhibit "C." Exhibits "A," `B," and "C" are attached to this document and made a part of the same. 2. Reservation of Easement in the Event of Sale of Park or Portion of Park In the event the City sells the Park, or portion of the Park described in Exhibit "C" which contains the sanitary sewer line described in Exhibit "B," the City reserves a permanent and perpetual water line and sanitary sewer line easement for the purpose of installing, constructing, repairing, maintaining, altering, replacing, relocating, rebuilding, removing, and operating water lines, sanitary sewer lines, and all necessary and related facilities and appurtenances, in, along, upon, under, over, and across the land described in Exhibit `B," together with the right of ingress and egress as necessary for such purposes. In addition to the reservation of the permanent easement, a 20 -foot wide temporary work space easement is reserved adjacent to and outside the perimeter of the permanent easement tract described in Exhibit `B." This easement shall run with the land, is irrevocable, and is for the benefit of the City and the City's successors and assigns. Executed the day of , 2015. PAGE I OF 2 - NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF WATER LINE AND SANITARY SEWER LINE AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK 0 Exhibit 5 CITY OF DENTON, TEXAS George C. Campbell, City Manager ACKNOWLEDGMENT STATE OF TEXAS § DENTON COUNTY § This document is acknowledged before me, on the day of , 2015, by GEORGE C. CAMPBELL, City Manager, Denton, Texas, a municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by the City Council of the City of Denton and that he executed the same as the act of said City for the purposes and consideration therein expressed, and in the capacity therein stated. Notary Public, State of Texas Approved as to legal form: Anita Burgess, City Attorney By: After recording, return to: Paul Williamson, Real Estate & Capital Support Manager City of Denton 901 -A Texas St. Second Floor Denton, Texas 76209 rAUL z UY z - NUTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF WATER LINE AND SANITARY SEWER LINE AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK EXH I BIT "A'Fvhihif S 8' PUBLIC UTILITY EASEMENT Being all that certain tot, tract or parcel of land situated in the Nelson hl. Meisenheimer Survey, Abstract Number 810 in the City of Denton, Denton County, Texas and being a part of a 26.600 acre tract of land described in a deed to the City of Denton, Denton County, Texas as recorded in County Clerk's File Number 2012- 146677 of the Real Property Records, Denton County, Texas; the subject tract being particularly described as follows; COMMENCING at a Texas Department of Transportation monument found being in the Southerly line of Riney Road and the Southwesterly line of U.S. Highway 77 (Business) also know as Locust Street and being the most Easterly Northeast corner of said 26.600 acre tract; Thence South 15 degrees 56 minutes 26 seconds West a distance of 20.74 feet to the POINT OF BEGINNING; Thence South 58 degrees 45 minutes 30 seconds East a distance of 122.21 feet to a point; Thence South 00 degrees 12 minutes 56 seconds East a distance of 9.38 feet to a point; Thence North 58 degrees 45 minutes 30 seconds West a distance of 140.63 feet to a point; Thence South 89 degrees 21 minutes 38 seconds East a distance of 15.71 feet to the PLACE OF BEGINNING and enclosing 1051.08 square feet of land more or less. KENN A ZQa t�G�R <' A 531`2 ..• >��9�ip.1� �LO'S U v PAGE 1 OF 2 KrAll 3 SURVEYING 1720 WESTMINSTER DENTON, 7X 76205 (940)382.3446 JOB NU6111ER: 14U451 P.U.E. ORAWN 8Y. DAR DATE: 7.2 &2015 R.RLS. KENNETH A. ZOLLINGER EXHIBIT "B" G) m N 1 II 1 o II � a II r `�'' lip —�"__ 1 � Z ° o N r�O arn V � m m cD N O Z W m to n ;u0> A C) m �nmW� o I ;-C It it mD �a>00 owozo p6z>m ,Jomo� e0000 1 m -4 0 {o z r r r r r r r r V O Ui A W N -a Z m m zz�nzu�cncnu� omooc�,ocn�m �wcoauowcnD om m Z TZIC W N � A -+ A (A LO � c)znD Z x -+v - (O �-�, Vl N CJi O Z W A N O m O� 'n c>MX -{ roT0- `oN�m� 00J7y -4in _ 1 T 0 pct m � m � m m � �O °-� n oqm C mm v 0 > —n z Z -4 o 00 �; I n� z trnm °� �4 m :--t o A C) O -4800 Z m I77 o G co bozo ti 1 O Homo O U m➢ z C C- m z a, v v CO -� m � z r m 9r���9 Opt "� � � fft CCF �� �O \ z N < o o, p92 OFD/ S L, x z Z m �m ACT V (JI O cD N O Z W mNa A C) m Doc - 946677 Exhibit 5 EXHIBIT "C" EXHIBIT "A" attacbMent to.Spedal Warranty Deed Page I of 2 ' • : .' '• �, �$ CR(j►�j4H.QP•PRQP•ERTY- 5URV6YpR . ' . • SITUATED' in the: Clty cf Denton, Denton County., Texas, :dnd being a 'tract of .land In '.the A Hi U014enhamer Suniey, Abstract -No. 810, and -being a•tfdrlion O'thot rtettatn p&OF l 44,6lRsed as a: resldue••traet -coifed Section 3, Trbct••Fifteen; la-deed tb Royzor investments; Ltd. recorded .in Volatile'• - 1796, Page 601, Renton County Degd'Records, and told portion being.More •fully descrlied a; foiloww' B61NNIN %pt -a 5/8 ". Iron Tod t6nd'in•piace for the.'sp6thwest comer of•sciel TrootAftean:and'the m ndrthwed -coet of that der loln tract conveyed to fhs Clty.bf [Benton for apart of•Northtdk0i PCA.,.l6v . •rdaed jecarded-in Voiume 69A*Page.2)3, of sold Degirt Reccarc)S, saxid` SOtrtt'bdtiig 4ttsb the•soyitfidast,'• • 0tnor: of that certain• tract•convoyed to Samuel J. afid florcil'iy Mdr!66 by;deed recorded Irk' tur.na. •' 1007, Page,244;'Wiald Geed Records, and porihegst.comer of thef certain pdriton of said Ngfth 1•akgs Park conveyed to the City of Denton.by•insR)tWdit recorded in Volume 704, Po6a -2451 o -'so!d Doe(Records; THENCE North .1 degree, 48 minutes, 55 seconds East with the common Itnwbetwreen sold Traot'i:thgon and saldMarints tract and partially along a:fenge•line; passing the south line of Rlriey.Rood; a.varlabl' wklth right ;� gray public load,. conttnuing.ln all 921.30 feet fQ a MAG riaii•far the oommpn• north corner bf 4old Tra6t•FifteBn and said•Madho fract•in.the south line of that ceOcdn tract conveyeeftotoit Joint V$nture' by ddOcf r6COr�edlii Volume 5322, Page 197, of said Dee$-Re.Co'rds: r THENCE 88 degrees, 48 minutes East with the north line of said Trcaat Fifteen acid satd souf� floe of; Cbthirddt, in and- near the center of the a§phalt pavement -of "said Riney Road,- 120:12•feet 16.1119* northwest comer of that cortoln Parcel :1 4 Conveyed to the $tbte'of Texas for U. S. Highway 7711WIness - Route (Songef'Rood) by deed recorded lh Volume 4363, Page J.* of sold Deed Records; iHE14CE South •1 -degree, 21 minutes, 20 seconds West with 'tha•west •itrre pf sold State of iadi ltibt: . pgaft sold 9ovlh One.-of Riney -Road, in cil•40,0 fe0ftc8 6/8 "' troth rod. found to place -foi thlh y4 t4hy southwest caner of said Stale of TeXds trtzct; TFIENC . South 68 degrees, 38:t hInutes, 40 seconds East with the ;most westerly south line.of`si�1d`Stcte -of . fe=tract, l¢1: a• 68'fept to " T00t"'capped 5/84' iron rod found-In. plpce for an angle {;,alnt in sold Stat6- chexgs tract;' THENCE South 58 degrees, 02'mihutes, 30 secotids East with a soUthwestarly line.of sold•Stcttao1•T,exos. . ' tract, 390)0 feet to an "RPLS 1440" capped 5/80• koti•rbd found Iri,pt696o."for the .most noriherty comerof that certain tt 6i aonveyedto the City,of Denton by deed rdcgrdeiwi rider Coonly, Cletk's Flle•Nb: M, 243.61.: THeNGE crossing sold'Royzor investments tract With• the -westerly Land northwesterly 11n9--of 610- Ctly of... Denton tract that Is described in insfiument•recorded under County Clark's Flle.t�to. 2{t0 24361, the followtng.cours6s and dlstancQi ' South •13 degrees, 02 mh fes,.30 , s eqonds East, 306 feet.to an " Rl?l:S 16401.•ccopad•5 /8" • lion t'od set;> ' . South 31 degrees, 57 minutes, 30 'seconds West, 390.30 feet•to an '•RPLS 1.640 ": cappeo 518" Iron rod set for the bedinning of•a curvy Whose center bears North 58•degrees, 02• minutes,.30 seconds West, 20b.0 feet; and, DOC- 146677 Exhibit 5 EXHIM "A" attachment to Special Warranty, Deed Page 2 of 2 ` oculhwetferiy'vtiwtth sdid• ourve, 206;35 feet td ah, "RPLS 1640'•' c6ppod 6/811 Iron rod Set for • , thd'end•df said curve aria the'ailo9t we9ferly c6mer of said Cify•of Dent6ri,'trd6f tha }•b... despri6ed•tn Instrument recoided under Covntyt Clerk's �((e Np. 2009 2x361; in a soiJtjt {tnq ; of xotd 1Yaot fifteen'and a norttt line of sdld City of Benton trciC described In VolurdiB.6R7; Page 213; -THENCE North 8B degrsgs, 55 minutes, 40 seconds West wltira fouth' line of•sold Tricot Mfteen•anO.w•north 'the of rd1d CItj6f Denton tricot that Is described lff1psfruimnt r�ecQrded Iri Volume 697, Pclge'213, 911.24 feetto a 5/8° Iron rod foundin:plac8•for ari.angie pbint ln:satd common llcies; :TkI4CE South •66 degrees,. 06 minutes, 05 iebonc i Wbst• leash II•earing' - .00nri ;City of Oehfo deaf!. In • • • Volume:697, Pale 213, of said Deed' Recclrcls), cont(nuting �viin comrrlon:lirtes between bald t'r�sgt Hiteera • and .sa(d. t~Ity • of Denton tract described' :[ Volume 697, 'Page 211 499.39 feet to the • PtAGE OF BEGINNING, grid cohfohing 26.600 pores (1,158,700 square feet).: ' • • 'This de�sadptton e:�g0�rad fo accafriaa�v a•suxvejtmap of 1he•dgscribed araaefir. . • • • • " ©etry�C�irttg �4ssod /af@�;;ii�i?t._ . . Rot)erf "Boi g9r '►/ .�"�r' MM494efc,6oc ; City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: PDA15 -0003, Version: Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: September 15, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding amendments to a Concept Plan and Detail Plan of Planned Development 176 (PD -176) to depict a Child Day Care facility on approximately 1.38 acres. The subject property is generally located on the south side of Robinson Road, approximately 220 feet east of Teasley Lane within a Planned Development 176 (PD -176) zoning district; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (PDA15- 0003). The Planning & Zoning Commission recommends approval of this request (7 -0), subject to the conditions. BACKGROUND The applicant is requesting approval of a Concept Plan and a Detailed Plan to depict new lot divisions for the development of a Child Day Care facility (Terry's Treehouse) on the subject property. PD -176 was created under the 1991 Denton Development Code ('91 DDC). New development within the PD boundary is subject to the '91 DDC procedures for PD Amendment approval. Pursuant to Sections 35 -151 through 158 and 35 -171 through 184, a PD Amendment is to be evaluated in conjunction with a submitted Concept Plan and a Detailed Plan for the specified use. The approval of this PD Amendment with its attached Ordinance, amends the prior guiding Concept Plan shown in Ordinance 2010 -254 and establishes a new Detailed Plan depicting the location of the Child Day Care facility which meets all pertinent development standards. The applicant's Concept Plan depicts new lot boundaries for the developable area along Robinson Road to accommodate the Child Day Care facility. The prior ordinance (2010 -254) indicated three lots, being Lot 6 (0.71 acres), Lot 7 (0.70 acres), and Lot 8 (0.63 acres). The revised Concept Plan shows Lots 6 & 7 are now combined into one lot (Lot 6) with Lot 8 relabeled as Lot 7. A future Final Plat will be required to dedicate Lot 6 with the necessary easements to support the intended Child Day Care development. The applicant has also submitted a Detailed Plan with the PD Amendment which depicts a one - story, 8,249 square foot Day Care facility with approximately 10,500 square feet of outdoor play space enclosed by a six - foot high decorative metal fence, and 38 parking spaces. The facility's footprint is a linear rectangle oriented north -to -south on the site and its exterior facade is made of stone veneer and cementitious siding. The building height is (25' -5 �/2 ") and the roof is depicted as a standing -seam metal hip roof. (See Elevations & Rendering). The Detailed Plan shall be used to guide the project's development for future building permits. City of Denton Page 1 of 3 Printed on 9/10/2015 File #: PDA15 -0003, Version: 1 The Child Day Care facility is compatible with the surrounding developments and will not be injurious to the use and enjoyment of other property within the vicinity of the site. There are more intense uses fronting Teasley Lane, south of Robinson Road which have more consistent customer vehicle trips and on -site circulation patterns. The Day Care's placement to the east of these commercial uses and adjacent to the back- side of the lower intensive self - service storage units provides for a natural separation of uses where site circulations will not mix. A Day Care use at this location is reasonable and will serve the surrounding neighborhood context. The Denton Plan 2030's Future Land Use Map designates the subject property as "Community Mixed Use" which is intended to promote a mix of uses, of which various commercial uses remain predominant, but where residential, service, and other uses are complimentary. Allowable uses may include shopping, service, recreation, employment, and institutional facilities that are required and supported by the surrounding community. The proposed Day Care facility complies with the comprehensive nature of the Community Mixed Use designation. Staff has analyzed the proposal and has determined that the Concept Plan and Detailed Plan conforms to the conditions for approval pursuant to Section 35 -151 and 35 -174, 175 of the '91 DDC and the underlying PD -176 standards found in Ordinance 99 -367 and with the Denton Plan. To comply with the public hearing notice requirements, 15 notices were sent to property owners within 200 feet of the subject property, 61 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. Staff has not received any responses from the notices either for or against this project. A neighborhood meeting was not held. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Development Review Committee recommends approval of this request, with the following conditions: 1. All original conditions of approval and subsequent modifications associated with PD -176 shall remain valid, unless specified herein. 2. The Concept Plan and Detailed Plan as submitted and shown in Exhibits 6 & 7 shall guide the development of the site. 3. The elevation drawing submitted and shown in Exhibit 8 shall guide the development of the 8,294 square foot building. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City of Denton Page 2 of 3 Printed on 9/10/2015 File #: PDA15 -0003, Version: 1 A public hearing was held at the September 2, 2015, Planning and Zoning Commission meeting and the Commission voted 7 -0 to recommend approval of the Planned Development Amendment to the City Council with the following conditions: 1. All original conditions of approval and subsequent modifications associated with PD -176 shall remain valid, unless specified herein. 2. The Concept Plan and Detailed Plan as submitted and shown in Exhibits 6 & 7 shall guide the development of the site. 3. The elevation drawing submitted and shown in Exhibit 8 shall guide the development of the 8,294 square foot building. 4. Amend the Detailed Plan to include parking wheel stops or a concrete raised curb between the westernmost parking and a 24 -foot Fire Lane /Access Drive to protect day care patrons from adjacent vehicular circulation. NOTE: The applicant has completed the plan revision for Condition No. 4. The submitted (Exhibit 8 - Detailed Plan) within the City Council backup materials incorporates the revised design. EXHIBITS 1. PZ Staff Report 2. Site Location/Aerial Map 3. Zoning Map 4. Future Land Use Map 5. Previous Concept Plan 6. Previous Detailed Plan 7. Concept Plan 8. Detailed Plan 9. Elevations & Rendering 10. Public Hearing Notification Map 11. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Ross Culbertson Senior Planner City of Denton Page 3 of 3 Printed on 9/10/2015 Item 513 Planning Report PDA15- 0003 /Terry's Treehouse PD Amendment City Council District #4 Planning & Zoning Commission September 2, 2015 REQUEST: Consider making a recommendation to City Council regarding amendments to the approved Concept Plan and Detailed Plan of Planned Development 176 (PD -176) District to depict a Child Day Care facility on approximately 1.38 acres. The subject property is generally located on the south side of Robinson Road, approximately 220 feet east of Teasley Lane. OWNER: Terry's Treehouse APPLICANT: Homeyer Engineering BACKGROUND: The purpose of the request is to amend a Concept Plan and a Detailed Plan to depict new lot divisions for the development of a Child Day Care facility (Terry's Treehouse). PD -176 was created under the 1991 Denton Development Code ('91 DDC). New development within the PD boundary is subject to the '91 DDC procedures for PD Amendment approval. Pursuant to Sections 35 -151 through 158 and 35 -171 through 184, a PD amendment is to be evaluated in conjunction with a submitted: General Concept Plan — intended to be used as the first step in the planned development process for larger or long term developments. It establishes the most general guidelines for the district by identifying the land use type, approximate thoroughfare locations and project boundaries and illustrates the integration of these elements into a master plan for the whole district; and or a, Detailed Plan — containing the details of the development of the property. Such standards include showing permitted land uses and the acreage for each use, adjacent or surrounding land uses, zoning, streets, drainage facilities, existing or proposed off -site improvements, the location and size of all alleys, parking lots and parking spaces, loading areas to be used for vehicular traffic, access and connection to existing or proposed streets, traffic generated by the proposed uses, the maximum height of all buildings, the maximum total floor area, the location of water retention areas and major drainage facilities, and the location of all major utilities. Additionally, Section 35 -158 describes applicability and procedures for evaluating minor amendments to a Detailed Plan. The criteria states minor amendments may be approved by the Director of Planning or his designee, so long as the amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved Detailed Plan. The proposed Day Care use alters the previously approved Concept Plan and Detailed Plan by increasing the lot area needed for construction of the use, thus requiring a new ordinance. The following is a chronologic history of Planned Development 176, commonly known as Wheeler Ridge, relevant to this PD Amendment request. Ordinance No. 99 -367 The City Council approved this Ordinance on October 5, 1999, and created Wheeler Ridge Planned Development District (PD -176) containing 168.57 acres, on the east side of Teasley Lane between Robinson Road and Hickory Creek Road. The Ordinance defined district standards for 9.08 acres of commercial development on Tracts 1 and additional standards for 159.49 acres of single- family neighborhood development. The subject property for this PD amendment is within Tract I located at the southeast corner of Teasley Lane and Robinson Road. The submitted project is guided by the above PD standards found in Ord. No. 99 -367. Development standards that are not explicitly stated and are silent within this ordinance, are then to comply with the prior'91 DDC. Ordinance No. 2000 -216 The City Council approved this Ordinance on June 20, 2000, and amended Ordinance No. 99 -367 by enlarging the PD area to develop a majority of the site with a residential subdivision. Ordinance No. 2009 -302 The City Council approved this Ordinance on December 1, 2009, and amended PD -176 with a revised Concept Plan and Detail Plan for Tract 1. The Ordinance allowed a self - service storage facility (Advantage Storage) on 4.05 acres. Ordinance No. 2010 -254 The City Council approved this Ordinance on revised Concept Plan and Detail Plan for Tract 1 gas pumps (7- Eleven) on 0.83 acres. Ordinance No. 2013 -076 October 5, 2010, and amended PD -176 with a The Ordinance allowed a convenience store and The City Council approved this Ordinance on March 19, 2013, and amended PD -176 with a revised Concept Plan and Detail Plan for Tract 1. The Ordinance allowed an auto parts sales store (O'Reilly Auto Parts) on 0.83 acres. Ordinance No. 2013 -182 The City Council approved this Ordinance on July 16, 2013, and amended PD -176 with a revised Detail Plan for Tract 1. The Ordinance allowed a car wash facility (Clean & Green Car Wash) on 0.62 acres. Planning Report PDA15 -0003 Page 2 of 5 SITE DATA: The subject property is approximately 1.38 acres in size and is located on the south side of Robinson Road, approximately 220 feet east of Teasley Lane. The overall 9.08 acre commercial corner is developed with four commercial uses. The pad site intended for development has a gradual rise in slope to the east of up to 16 feet between the two constructed driveway entrances from Robinson Road. The Day Care facility will utilize approximately two- thirds of the pad site, with a remainder lot for future development, (See Concept Plan). CONSIDERATIONS: The applicant has submitted a revised Concept Plan with the PD Amendment which depicts new lot boundaries for developable area along Robinson Road. The prior ordinance (2010- 254) indicated three lots being; Lot 6 (0.71 acres), Lot 7 (0.70 acres), and Lot 8 (0.63 acres). The revised Concept Plan shows Lots 6 & 7 are now combined into one lot (Lot 6) with Lot 8 relabeled as Lot 7. A future Final Plat will be required to dedicate Lot 6 with the necessary easements to support the intended day care development. The proposed Concept Plan also depicts the new Day Care facility in context to the commercial corner's development pattern and adjacent uses. A shared access drive between Lot 6 and Lot 7 will be connected to complete the circuitous route for ingress /egress from both driveway entrances off Robinson Road. 2. The applicant has also submitted a Detailed Plan with the PD Amendment which depicts a one - story, 8,249 square foot Day Care facility with an approximately 10,500 square foot of outdoor play space enclosed by a six -foot high decorative metal fence, and 38 parking spaces. The facility's footprint is a liner rectangle oriented north -to -south on the site and its exterior facade is made of stone veneer and cementitious siding. The building height is (25' -5 �/2 ") and the roof is depicted as a standing -seam metal hip roof. (See Elevations & Rendering). The Detailed Plan shall be used to guide the project's development for future building permits. 3. Pursuant to Section 35 -151 and 35 -174, 175 of the '91 DDC; the stated goals and objects for review and approval of a Concept Plan and Detailed Plan are met with the applicant's submittal and the Development Review Committee has no objection. USE OF PROPERTY UNDER CURRENT ZONING: The subject property is zoned Planned Development 176 (PD -176) District. Ordinance No. 99- 367 defines district standards for creating a cohesive commercial development which is intended to provide convenient goods and services vital to day -to -day activities of adjacent neighborhoods. PD -176 does not explicitly list day cares as an approved use, however the use is allowed by right within the '91 DDC's use chart under commercial development. SURROUNDING ZONING AND LAND USES: North: Property to the north is zoned Neighborhood Residential 2 (NR -2) and is developed with a mobile home park subdivision and also Community Mixed Use General (CM -G) with a retail building on the northeast corner of Teasley Lane and Robinson Road. East: Property to the east is zoned Planned Development 176 (PD -176) and is vacant. Planning Report PDA15 -0003 Page 3 of 5 South: Property to the south is zoned Planned Development 176 (PD -176) and is developed with a self - service storage facility. West: Property to the west is zoned Planned Development 176 (PD -176) and is developed with a convenience store with gas pumps. COMPATIBILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The proposed Child Day Care facility is a compatible use with the surrounding land uses. There are more intense uses fronting Teasley Lane, south of Robinson Road which have more consistent customer vehicle trips and on -site circulation patterns. The Day Care's placement to the east of these commercial uses and adjacent to the back -side of the lower intensive self - service storage units provides for a natural separation of uses where site circulations will not mix. A day care use at this location is reasonable and will serve the surrounding neighborhood context. COMPREHENSIVE PLAN: The Denton Plan 2030's Future Land Use Map designates the subject property as "Community Mixed Use" which is intended to promote a mix of uses, of which various commercial uses remain predominant, but where residential, service, and other uses are complimentary. Allowable uses may include shopping, service, recreation, employment, and institutional facilities that are required and supported by the surrounding community. The proposed Day Care facility complies with the comprehensive nature of the Community Mixed Use designation. STAFF RECOMMENDATION: Staff recommends approval of the request as both the Concept Plan and Detailed Plan are compatible with the surrounding property, consistent with the overall goals of PD -176, and consistent with the goals and objectives of the Denton Plan 2030, with the following conditions; 1. All original conditions of approval and subsequent modifications associated with PD -176 shall remain valid, unless specified herein. 2. The Concept Plan and Detailed Plan as submitted and shown in Exhibits 5 & 6 shall guide the development of the site. 3. The elevation drawing submitted and shown in Exhibit 7 shall guide the development of the 8,294 square foot building. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, 15 notices were sent to property owners within 200 feet of the subject property, 61 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. Staff has not received any responses from the notices either for or against this project. A neighborhood meeting was not held. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. Planning Report PDA15 -0003 Page 4 of 5 4. Table the item. PROJECT TIMELINE: ATTACHMENTS: • Business Days Business Subject Date under Days out Exhibit 3 - Future Land Use Map DRC Review to Applicant Application Received July 8, 2015 - - 1 st Submittal sent to DRC Members July 8, 2015 - - Comments Released to Applicant July 24, 2015 16 - DRC Meeting with Staff July 30, 2015 - - 2 "a Submittal Sent to DRC Members August 10, 2015 - 17 Comments Released to Applicant August 20, 2015 10 - Total Business Days 26 17 ATTACHMENTS: • Exhibit 1 — Site Location/Aerial Map • Exhibit 2 - Zoning Map • Exhibit 3 - Future Land Use Map • Exhibit 4 — Previous Concept Plan • Exhibit 5 — Previous Detailed Plan • Exhibit 6 — Concept Plan • Exhibit 7 — Detailed Plan • Exhibit 8 — Elevations and Rendering • Exhibit 9 — Public Hearing Notification Map Prepared By: Ross Culbertson, Senior Planner Date: 8/24/15 Reviewed By: Ron Menguita, AICP Development Review Committee Administrator Date: 8/25/15 Reviewed By: Munal Mauladad Deputy Director of Development Services Date: 8/27/15 Planning Report PDA15 -0003 Page 5 of 5 PDA15 -0003 - Terry's Treehouse Notification Map uu o O The City of Denton has prepared maps for departmental use. These are not of ,,i,l maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No v✓arranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN AMENDMENT TO THE CONCEPT PLAN AND APPROVING A DETAILED PLAN IN THE PLANNED DEVELOPMENT 176 (PD -176) ZONING DISTRICT, TRACT 1, TO ALLOW AN 8,249 SQUARE -FOOT CHILD DAY CARE FACILITY (TERRY'S TREEHOUSE) ON A 1.38 -ACRE PROPERTY LOCATED WITHIN THE WHEELER RIDGE PLANNED DEVELOPMENT DISTRICT (PD -176). THE SUBJECT SITE IS LOCATED ON THE SOUTH SIDE OF ROBINSON ROAD, APPROXIMATELY 200 FEET EAST OF TEASLEY LANE (FM 218 1) IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING A SAVING CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (PDA15- 0003). WHEREAS, Applicant Homeyer Engineering ( "Applicant ") requests to develop approximately 1.38 acres of property located within the Wheeler Ridge Planned Development District (PD -176), generally located on the South side of Robinson Road, approximately 200 feet East of Teasley Lane (FM 2181) in the City of Denton, Denton County, Texas and more particularly described in Exhibit "A" attached hereto and incorporated by reference herein (the "Property "); and WHEREAS, PD -176 Zoning District was approved by the City Council on October 5, 1999 pursuant to Ordinance No. 99 -367 to include 168.57 acres of land, which was enlarged to 253.36 acres of land in 2000 under Ordinance 2000 -216, and which includes the Property; and WHEREAS, the Concept Plan for PD -176, Tract I, was amended in 2009 and 2010, pursuant to Ordinance Nos. 2009 -302 and 2010 -254, respectively (the "Concept Plan "); and WHEREAS, the Concept Plan includes the Property, specifically Lot 6, composed of approximately 0.71 acres and Lot 7, composed of approximately 0.67 acres, but also includes Lot 8, composed of approximately 0.63 acres; and WHEREAS, Applicant requests to amend the Concept Plan to combine Lots 6 and 7 into one "Lot 6 ", with Lot 8 relabeled "Lot 7" as depicted in Exhibit "B" attached hereto and incorporated by reference (the "Amended Concept Plan "); and WHEREAS, Applicant further requests the approval of a Detailed Plan for the new "Lot 6" in order to develop an 8,249 square foot Child Day Care facility (Terry's Treehouse) on the Property, as depicted in Exhibits "C" and "D" attached hereto and incorporated herein by reference; and WHEREAS, on September 2, 2015, after required notice, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the amended Concept Plan and the Detailed Plan with conditions; and WHEREAS, the City Council finds that the Amended Concept Plan is consistent with the plans for the entire PD -176 Zone and the Detailed Plan is consistent with the Amended Concept Plan, which Amended Concept Plan and Detailed Plan are both consistent with the Denton Plan Page 1 of 7 and the Denton Development Code; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. Concept Plan Amended. The Concept Plan within the PD -176 District, Tract I, is hereby amended as reflected in Exhibit "B" attached hereto and incorporated by reference. SECTION 3. Detailed Plan Adopted. The Detailed Plan for the Property is hereby approved as reflected in Exhibits "C" and "D ", attached hereto and incorporated by reference, subject to the following conditions: All original conditions of approval and subsequent modifications associated with PD -176 shall remain valid, unless specified herein; 2. The Concept Plan and Detailed Plan as submitted and shown in Exhibits "B" and "C" shall guide the development of the site; and The elevation drawing submitted and shown in Exhibit "D" shall guide the development of the 8,294 square foot building. SECTION 4. Savings Clause. The provisions of this ordinance shall govern and control over any conflicting provisions of previously applicable ordinances. To the extent the previously applicable ordinances do not conflict or do not apply to Tract I of PD -176, those Ordinances shall continue in full force and effect. SECTION 5. Amended PD. A copy of this ordinance shall be attached to Ordinance No.'s 99 -367, 2000 -216, 2009 -302, 2010 -254, 2013 -076, and 2013 -182 showing the amendment herein approved, or attached to any other applicable ordinances as determined by the Director of Development Services, or his /her designee. SECTION 6. Penalty. Any person, firm, entity or corporation violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00 for each violation. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. The penal provisions imposed under this Ordinance shall not preclude Denton from filing a civil suit to enjoin the violation and it retains all legal rights and remedies available under local, State, and Federal law. SECTION 7. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this Ordinance are severable. SECTION 8. Effective Date. 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 Page 2 of 7 the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA A.BURGESS, CITY ATTORNEY lu t, Page 3 of 7 STATE OF TEXAS COUNTY OF DENTON Exhibit A Legal Description [LEGAL DESCRIPTION] Being all that certain lot, tract or parcel of land situated in the B. Merchant Survey, Abstract Number 800 in the City of Denton, Denton County, Texas and being a part of Lot 2, Block A of Wheeler Ridge Commercial, an addition to the City of Denton, Denton County, Texas according to the Conveyance Plat thereof as recorded in Document Number 2010 -177 of the Plat Records, Denton County, Texas; the subject tract being more particularly described as follows; BEGINNING at a capped /z" iron rod stamped "KAZ" set for the Northwest corner of the herein described tract and the Northeast corner of Lot 5, Block A of Wheeler Ridge Commercial, an addition to the City of Denton, Denton County, Texas according to the Final Plat thereof, as recorded in Document Number 2011- 128 of the Plat records, Denton County, Texas and being in the South Right of Way line of Robinson Road; Thence South 89 degrees 13 minutes 15 seconds East with the South line thereof a distance of 196.74 feet to a capped '/2" iron rod stamped "KAZ" set in the South line of said road; Thence South 62 degrees 19 minutes 41 seconds East with the South line thereof and North line of said Lot 2 a distance of 10.33 feet to a capped '/2" iron rod stamped "KAZ" set for in the South line of said road; Thence South 89 degrees 25 minutes 42 seconds East with the said common line a distance of 92.29 feet to a capped '/2" iron rod stamped "KAZ" set for in the South line of said road and North line of said Lot 2 for the Northeast corner of the herein described tract; Thence South 00 degrees 32 minutes 04 seconds West a distance of 202.13 feet to a capped '/2" iron rod stamped "KAZ" set for the Southeast corner of the herein described tract and being in the South line of said Lot 2 and the North line of Lot 1, Block A of Wheeler ridge Commercial, an addition to the City of Denton, Denton County, Texas according to the Final Plat thereof, as recorded in Document Number 2010 -178 of the Plat Records, Denton County, Texas; Thence South 87 degrees 35 minutes 40 seconds West with the common line thereof a distance of 208.73 to a /z" iron rod found for the Northwest corner of said Lot I and being in the East line of Lot 4, Block A of Wheeler Ridge Commercial, an addition to the City of Denton, Denton County, Texas according to the Final Plat thereof, as recorded in Document Number 2013 -142 of the Plat Records, Denton County, Texas; Thence North 01 degrees 17 minutes 03 seconds East with the West line thereof a distance of 25.64 feet to a capped '/2" iron rod stamped "KAZ" set for the Northeast corner of said Lot 4; Thence North 87 degrees 14 minutes 34 seconds West with the North line thereof a distance of 79.27 feet to a "X" cut found for the Southwest corner of the herein described tract and being in the north line of said Lot 4 and the Southeast Curve of said Lot 5; Thence North 02 degrees 24 minutes 20 seconds West with the East line thereof a distance of 190.00 feet to the PLACE OF BEGINNING and enclosing 1.38 acres of land more or less Page 4 of 7 Exhibit B (Concept Plan) Page 5 of 7 Exhibit C (Detailed Plan) fiz�J N (�' S N 1213 N I S N 3 d k 99X31 'A1Nnoo NO1N30 NOIN3030 A1I0 nUOV BLS'L NOUIOOV 390173 2L33133HM = O i- NV'Id 311S a W j Loi o LL L 3snoH;i 31 S,Aiij3 1 s i I � I I � i � J i k � ] 7 lh - � I , p i n^ z , n . ............... .. ................ Page 6 of 7 k = k J L LL L s i I � I I � i � J i k � ] 7 lh - � I , p i n^ z , n . ............... .. ................ Page 6 of 7 Exhibit D (Elevations) xoxrx ELEVAI2ox Page 7 of 7 PDA15 -0003 - Terry's Treehouse Aerial Map 0 50 100 200 Site w J Feet _ 2i�r 9 5 r 'S �' f., - �� �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� DENTON V'IluhninhTO GleG'ri tirnent -GIG Date: 8/11/2015 ne arty of Uenton nas prepared maps Tor departmental use. I nese are not onia th ai maps of e Uty of Uenton and snouio not De used Tor legal, engineering or surveying purposes out Tamer Tor reference purposes. nese maps are e property of the Uty of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No v✓arrant thies, expressed or implied, are provided) for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. PDA15 -0003 - Terry's Treehouse Future Land Use Map /o - >(>(i(�lll�il����l>(�l 111 ����lll ��������� 1 /1������,f(��lll�,f���l�>?���� j I% 'M i i i 0 i f j f D 0 D 0 G Al n j IN o j i1% %/%%OWR, E mom 1111%O////%//O Site Low Residential N T -`- w_ E� 9J� 0 50 100 200 Feet S , Community Mixed Used nof 7 ����� uuuuuu�uiiiui����lllllllllllllllll ���� DENTON o [� l'a ldan Iiin1 ' g Df'Spiftiirnent - GIG Date: 8/11/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. 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F a = O � v z 0 H d w a w. x° h: x ^. os z� z O H d w a w° F 3111 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -900, Version: 1 Agenda Information Sheet SUBJECT Willie Hudspeth regarding City Hall. City of Denton Page 1 of 1 Printed on 9/10/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -906, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Patrick Kelley regarding a new skate park. City of Denton Page 1 of 1 Printed on 9/10/2015